Kansas Appellate Practice Handbook
5th Edition
Kansas Judicial Council
Subscription Information
The Kansas Appellate Practice Handbook is updated on a periodic
basis with supplements to reflect important changes in both statutory law
and case law. Your purchase of this publication automatically records
your subscription for the update service.
If you do not wish to receive the supplements, you must inform the
Judicial Council. You may contact the Judicial Council by e-mail at
[email protected], by telephone at (785) 296-2498 or by
mail at:
Kansas Judicial Council
301 SW 10th, Ste. 140
Topeka, KS 66612
©
2013
KANSAS JUDICIAL COUNCIL
ALL RIGHTS RESERVED
ii
PREFACE
The authors and editors of this Fifth Edition of the handbook owe a
professional debt to those who authored the First Edition of the handbook
in 1978 and issued a revision in 1984. Members of the original KBA Kansas
Appellate Practice Handbook Writing Committee included Hon. J. Richard Foth
and Robert J. Roth, Co-Chairs, Hon. Bob Abbott, Lewis C. Carter, Professor
Robert C. Casad, Professor James Concannon, Jerry G. Elliott, Don Patterson,
Fred N. Six, and Hon. Jerome Harman, Editor. The 1984 revision was prepared
by Hon. J. Richard Foth, Hon. Bob Abbott, and Carol Gilliam Green.
The Second Edition in 1994 and the Third Edition in 1998 were edited
by Hon. Bob Abbott and Carol Gilliam Green. Other contributing authors
and editors to those editions were Alan F. Alderson, Hon. J. Patrick Brazil,
Debra Sue Byrd Peterson, Hon. Jerry G. Elliott, Randall E. Fisher, Brian J.
Moline, Robert W. Parnacott, Robert L. Phelps II, Joan K. Rowland, Robert C.
Rowland, Martha M. Snyder, and Cheryl L. Whelan.
In 2005, the Kansas Bar Association, publisher of the handbook,
generously donated its copyright to the Kansas Judicial Council which assumed
responsibility for publication. In addition to traditional publication, the Judicial
Council makes the handbook available online, as a public service, at www.
kansasjudicialcouncil.org and www.kscourts.org.
The Fourth Edition, published in 2007, was prepared under the direction
of the Judicial Council Appellate Procedure Advisory Committee, chaired
by Hon. Jerry G. Elliott. Authors and editors included Janet L. Arndt, Hon.
Jerry G. Elliott, Teri E. Canfield-Eye, Hon. Nancy L. Caplinger, Richard L.
Cram, Nicholas S. Daily, James M. Gannon, Carol Gilliam Green, Randall L.
Hodgkinson, Clinton L. Hurt, Gayle B. Larkin, Hon. Marla J. Luckert, Patricia
E. McComas, Hon. Kevin P. Moriarty, Steven J. Obermeier, Debra Sue Byrd
Peterson, Nancy J. Strouse, Michelle M. Watson, and Tonia Owens Whitener.
The 2009 update of the Kansas Appellate Practice Handbook, Fourth Edition,
was prepared by Hon. Nancy L. Caplinger, Martha J. Coffman, Hon. Jerry G.
Elliott, James M. Gannon, Carol Gilliam Green, Chelsey G. Langland, Gayle B.
Larkin, Kimberly D. Long, Christy R. Molzen, Steven J. Obermeier, Jonathan
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2013
M. Paretsky, and Carrie A. Wortman. The 2010 supplement was prepared by
Christy R. Molzen and Carol Gilliam Green.
This Fifth Edition has been prepared under the direction of the Judicial
Council Appellate Practice Advisory Committee, chaired by Carol Gilliam
Green. Authors and editors included Carol Gilliam Green, Hon. Stephen D.
Hill, Hon. Jared Johnson, Stephen M. Kerwick, Lydia H. Krebs, Chelsey G.
Langland, Gayle B. Larkin, Christy R. Molzen, Hon. Nancy L. Moritz, Steven J.
Obermeier, and Barry L. Pickens.
This handbook represents a collective view of current appellate practices
and procedures which are subject to change. The Kansas Appellate Courts
have not endorsed, nor are they bound by, statements in this handbook.
Statutory references throughout are to the latest version of the Kansas
Statutes Annotated unless otherwise specifically indicated. Rules refer to the
Kansas Supreme Court Rules, published annually in the Kansas Court Rules
Annotated.
Carol Gilliam Green, Chair
Kansas Judicial Council
Appellate Practice Advisory Committee
DEDICATION
The Honorable Jerry G. Elliott
November 25, 1936 - April 5, 2010
In recognition of his invaluable contributions to the
Kansas Appellate Practice Handbook over more than thirty years of
publication.
2013
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TABLE OF CONTENTS
Chapter 1
HISTORY OF THE APPELLATE COURTS
Chapter 2
PERSONNEL OF THE APPELLATE COURTS
§ 2.1 § 2.2 § 2.3 § 2.4 § 2.5 § 2.6 § 2.7 The Supreme Court.......................................................................................2-1
The Court of Appeals...................................................................................2-2
Clerk of the Appellate Courts.....................................................................2-2
Appellate Reporter.........................................................................................2-3
Judicial Administrator....................................................................................2-3
Law Librarian..................................................................................................2-4
Disciplinary Administrator...........................................................................2-4
Chapter 3
INTERNAL OPERATING PROCEDURES
I. SUPREME COURT
§ 3.1 § 3.2 § 3.3 § 3.4 § 3.5 § 3.6 Hearings...........................................................................................................3-1
Decision...........................................................................................................3-2
Opinions..........................................................................................................3-2
Motions and Original Actions......................................................................3-2
Petitions for Review.......................................................................................3-3
Disqualification and Recusal........................................................................3-3
II. COURT OF APPEALS
§ 3.7 Prehearing.......................................................................................................3-4
§ 3.8 Decision...........................................................................................................3-5
§ 3.9 Opinions..........................................................................................................3-6
§ 3.10 Motions............................................................................................................3-6
§ 3.11 Disqualification...............................................................................................3-6
III. CONFIDENTIALITY
§ 3.12 Confidentiality in the Appellate Courts......................................................3-7
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Chapter 4
ORIGINAL ACTIONS IN THE APPELLATE COURTS
§ 4.1 § 4.2 § 4.3 § 4.4 § 4.5 § 4.6 § 4.7 § 4.8 Exercise of Concurrent Jurisdiction...........................................................4-1
Procedure upon Filing an Original Action.................................................4-1
Docket Fees....................................................................................................4-2
Disposition......................................................................................................4-2
The Record......................................................................................................4-3
Quo Warranto.................................................................................................4-4
Mandamus.......................................................................................................4-4
Habeas Corpus...............................................................................................4-6
Chapter 5
APPELLATE JURISDICTION
I.
CREATION OF THE KANSAS APPELLATE COURTS
§ 5.1 Constitutional and Statutory Authority......................................................5-1
II. APPELLATE JURISDICTION OF THE SUPREME COURT IN
CRIMINAL CASES
§ 5.2 Direct Appeals to the Supreme Court........................................................5-2
III. APPELLATE JURISDICTION OF THE COURT OF APPEALS IN
CRIMINAL CASES
A. Appeals by the Defendant to the Court of Appeals
§ 5.3 Generally..............................................................................................5-3
§ 5.4 Following Judgment...........................................................................5-4
§ 5.5 Following Pleas...................................................................................5-6
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B.
Appeals by the Prosecution to the Court of Appeals
C.
Sentencing Guidelines Appeals
§ 5.6 Generally..............................................................................................5-8
§ 5.7 From an Order Dismissing a Complaint,
Information or Indictment: K.S.A. 22-3602(b)(1).....................5-9
§ 5.8 From an Order Arresting Judgment: K.S.A. 22-3602(b)(2)......5-11
§ 5.9 Upon a Question Reserved by the Prosecution: K.S.A.
22-3602(b)(3)..................................................................................5-11
§ 5.10 Upon an Order Granting a New Trial in Any Case Involving
an Off-Grid Crime: K.S.A. 22-3602(b)(4).................................5-14
§ 5.11 Interlocutory Appeals: K.S.A. 22-3603........................................5-14
§ 5.12 Appeals Under the Kansas Sentencing Guidelines Act..............5-16
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IV. APPELLATE JURISDICTION IN JUVENILE OFFENDER CASES
§ 5.13 Appeals by the Juvenile Offender...........................................................5-19
§ 5.14 Appeals by the Prosecution......................................................................5-20
§ 5.15 Sentencing Guidelines Appeals - Juvenile..............................................5-21
V. APPELLATE JURISDICTION IN CIVIL CASES
§ 5.16 Supreme Court...........................................................................................5-22
§ 5.17 Court of Appeals.......................................................................................5-23
VI. APPEALABLE ORDERS IN CIVIL CASES
§ 5.18 Final Orders................................................................................................5-24
§ 5.19 Interlocutory Orders that are Appealable as a Matter of Right.........5-30
§ 5.20 Interlocutory Orders that are Appealable in the Court’s Discretion5-31
§ 5.21 K.S.A. 60-254(b) – Entry of Final Judgment as to
One or More but Fewer than All Claims or Parties...........................5-33
§ 5.22 Probate Proceedings..................................................................................5-35
§ 5.23 Juvenile Proceedings..................................................................................5-38
VII. TRANSFER OF CASES BETWEEN THE APPELLATE COURTS
§ 5.24 General........................................................................................................5-38
§ 5.25 Upon Motion of a Party...........................................................................5-39
§ 5.26 Upon Motion of the Supreme Court.....................................................5-39
§ 5.27 Upon Motion of the Court of Appeals.................................................5-40
§ 5.28 Appeal of Right from Court of Appeals to Supreme Court..............5-40
§ 5.29 Petitions for Review by Supreme Court
of Court of Appeals Decisions............................................................5-40
VIII. MULTI-LEVEL APPEALS
§ 5.30 General........................................................................................................5-42
§ 5.31 Appeals from Decisions of District Magistrate Judges
in Criminal Cases.....................................................................................5-42
§ 5.32 Appeals from Decisions of District Magistrate Judges
in Civil Cases............................................................................................5-43
§ 5.33 Appeals from Municipal Court to District Court
in Criminal Cases.....................................................................................5-44
§ 5.34 Appeals from Municipal Court to District Court
in Civil Cases............................................................................................5-45
§ 5.35 Appeals from Decisions in Small Claims Court......................................5-45
§ 5.36 Certified Questions......................................................................................5-45
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Chapter 6
JUDICIAL REVIEW OF AGENCY DECISIONS
§ 6.1 Introduction....................................................................................................6-1
§ 6.2 Scope of KJRA..............................................................................................6-2
§ 6.3 Persons Entitled to Review..........................................................................6-3
§ 6.4 Standing...........................................................................................................6-3
§ 6.5 Exhaustion of Remedies...............................................................................6-4
§ 6.6 Primary Jurisdiction.......................................................................................6-5
§ 6.7 Initiating Review — Where to File.............................................................6-5
§ 6.8 Timely Filing and Service.............................................................................6-6
§ 6.9 Pleading Requirements of Petition for Judicial Review...........................6-8
§ 6.10 Stays and Other Remedies............................................................................6-9
§ 6.11 Preserving Issues for Review Under the KJRA........................................6-9
§ 6.12 The Agency Record.....................................................................................6-11
§ 6.13 Scope of Review..........................................................................................6-11
§ 6.14 Remedies........................................................................................................6-15
§ 6.15 Appeals Outside of the KJRA...................................................................6-16
§ 6.16 Workers Compensation Cases....................................................................6-17
§ 6.17 Checklist for Review of Agency Action...................................................6-18
Chapter 7
APPELLATE PROCEDURE
I. NOTICE OF APPEAL
§ 7.1 § 7.2 § 7.3 § 7.4 § 7.5 § 7.6 § 7.7 § 7.8 Generally.........................................................................................................7-1
Chapter 60 Appeals.......................................................................................7-1
Chapter 61 Appeals.......................................................................................7-4
Juvenile Appeals.............................................................................................7-5
Probate Appeals.............................................................................................7-6
Mortgage Foreclosure Appeals....................................................................7-6
Criminal Appeals............................................................................................7-7
Cross-Appeals.................................................................................................7-9
II. FILING OR SERVICE OF PAPERS: TIME COMPUTATIONS
§ 7.9 Generally.......................................................................................................7-10
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III. STAYS PENDING APPEAL
§ 7.10 Generally........................................................................................................7-12
§ 7.11 Chapter 60 Appeals......................................................................................7-12
§ 7.12 Chapter 61 Appeals......................................................................................7-13
§ 7.13 Juvenile Appeals...........................................................................................7-13
§ 7.14 Probate Appeals...........................................................................................7-13
§ 7.15 Criminal Appeals..........................................................................................7-13
IV. DOCKETING THE APPEAL
§ 7.16 Generally........................................................................................................7-15
§ 7.17 Parental Notice Waiver Requirements — Rule 10.01.............................7-18
V. APPEARANCE AND WITHDRAWAL
§ 7.18 Appearance....................................................................................................7-19
§ 7.19 Withdrawal....................................................................................................7-20
VI. RECORD ON APPEAL
§ 7.20 Record of Proceedings Before the Trial Court.......................................7-21
§ 7.21 Transcript of Proceedings..........................................................................7-21
§ 7.22 Filing of Transcripts....................................................................................7-23
§ 7.23 Unavailability of Transcripts or Exhibits.................................................7-23
§ 7.24 Appeal on Agreed Statement.....................................................................7-24
§ 7.25 District Court Clerk’s Preparation of the Record on Appeal...............7-24
§ 7.26 Request for Additions to the Record on Appeal.....................................7-25
§ 7.27 Transmission of the Record on Appeal...................................................7-26
VII. CONSOLIDATION OF APPEALS
§ 7.28 Generally........................................................................................................7-27
VIII. MOTIONS
§ 7.29 Generally........................................................................................................7-28
§ 7.30 Motion for Additional Time.......................................................................7-30
§ 7.31 Motion Relating to Corrections in Briefs.................................................7-30
§ 7.32 Motion to Substitute Parties.......................................................................7-31
§ 7.33 Motion for Permission to File Amicus Brief ............................................7-31
§ 7.34 Motion to Consolidate Appeals.................................................................7-31
§ 7.35 Motion to Transfer an Appeal to the Supreme Court............................7-31
IX. VOLUNTARY AND INVOLUNTARY DISMISSALS
§ 7.36 Voluntary Dismissal.....................................................................................7-32
§ 7.37 Involuntary Dismissal..................................................................................7-32
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X. APPEALS PLACED ON SUMMARY CALENDAR
§ 7.38 Summary Calendar Screening and Procedure..........................................7-33
XI. APPEALS SCHEDULED FOR ORAL ARGUMENT
§ 7.39 Requesting Additional Oral Argument Time...........................................7-33
§ 7.40 Suggesting a Hearing Location Before the Court of Appeals..............7-34
§ 7.41 Notice of Hearing Date..............................................................................7-34
§ 7.42 Procedure at Oral Argument......................................................................7-34
XII. APPELLATE COURT DECISIONS AND POST-DECISION
PROCEDURE
§ 7.43 Decisions of the Appellate Courts............................................................7-36
§ 7.44 Motion for Rehearing or Modification.....................................................7-37
§ 7.45 Appeal as a Matter of Right from Court of Appeals.............................7-38
§ 7.46 Petition for Review......................................................................................7-38
§ 7.47 Timing of Petition for Review...................................................................7-39
§ 7.48 Content of Petition for Review.................................................................7-39
§ 7.49 Grant or Denial of Review.........................................................................7-39
§ 7.50 Cross-Petitions and Responses..................................................................7-40
§ 7.51 Page Limits and Covers...............................................................................7-40
§ 7.52 Procedures Following Granting of Reveiw..............................................7-41
§ 7.53 Oral Argument.............................................................................................7-41
§ 7.54 Effect on Mandate.......................................................................................7-41
§ 7.55 Other Dispositions......................................................................................7-42
§ 7.56 Denial of Review.........................................................................................7-42
XIII. COSTS AND ATTORNEY FEES
§ 7.57 Costs...............................................................................................................7-42
§ 7.58 Attorney Fees................................................................................................7-43
XIV.MANDATE
§ 7.49 Generally........................................................................................................7-44
§ 7.50 Supreme Court.............................................................................................7-44
§ 7.51 Court of Appeals.........................................................................................7-44
§ 7.52 Stays After Decision....................................................................................7-45
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Chapter 8
STANDARDS AND SCOPE OF APPELLATE REVIEW
I. INTRODUCTION
§ 8.1 § 8.2 § 8.3 § 8.4 § 8.5 § 8.6 Preliminary Matters.......................................................................................8-1
Standard of Review – Definition................................................................8-1
Requirements for Appellate Briefs..............................................................8-2
Issues Must be Preserved for Appeal.........................................................8-2
Determining the Appropriate Standard of Review..................................8-3
Practical Considerations................................................................................8-3
II. DISCUSSION AND EXAMPLES
§ 8.7 Discretionary Issues.......................................................................................8-4
§ 8.8 Factual Issues When Appellant Did Not Have Burden of Proof .........8-5
§ 8.9 Substantial Competent Evidence.................................................................8-5
§ 8.10 Sufficiency of the Evidence.........................................................................8-6
§ 8.11 Factual Issues When Appellant Had Burden of Proof ...........................8-6
§ 8.12 Factual Evidence Undisputed or Based Solely upon Documents..........8-7
§ 8.13 Legal Issues.....................................................................................................8-7
III. PARTICULAR TOPICS OR AREAS OF LAW
§ 8.14 Administrative Actions – State Agencies...................................................8-8
§ 8.15 Administrative Actions – Non-state Agencies..........................................8-9
§ 8.16 Cumulative Error.........................................................................................8-10
§ 8.17 Ineffective Assistance of Counsel.............................................................8-10
§ 8.18 Jury Instructions...........................................................................................8-10
§ 8.19 Motions to Dismiss – Civil.........................................................................8-12
§ 8.20 Motions to Dismiss – Criminal..................................................................8-12
§ 8.21 Prosecutorial Misconduct...........................................................................8-13
§ 8.22 Summary Judgment......................................................................................8-14
§ 8.23 Termination of Parental Rights.................................................................8-14
IV. NO APPELLATE REVIEW
§ 8.24 Acquiescence.................................................................................................8-14
§ 8.25 Invited Error.................................................................................................8-15
§ 8.26 Moot Issues...................................................................................................8-15
§ 8.27 Correct Ruling for Erroneous Reason......................................................8-15
§ 8.28 Abandoned Points........................................................................................8-15
§ 8.29 Failure to Designate a Record....................................................................8-16
V. SUMMARY
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Chapter 9
BRIEF WRITING
§ 9.1 Time Schedule for Briefs–Rule 6.01...........................................................9-1
§ 9.2 Content of Appellant’s Brief–Rule 6.02.....................................................9-2
§ 9.3 Contents of Appellee’s Brief–Rule 6.03.....................................................9-5
§ 9.4 Content of Cross-Appellee’s Brief–Rule 6.04...........................................9-6
§ 9.5 Reply Brief–Rule 6.05....................................................................................9-6
§ 9.6 Brief of Amicus Curiae–Rule 6.06................................................................9-7
§ 9.7 Format for Briefs–Rule 6.07.........................................................................9-7
§ 9.8 Reference Within Brief–Rule 6.08.............................................................9-10
§ 9.9 Service of Brief and Additional Authority–Rule 6.09...........................9-11
§ 9.10 Brief in Criminal or Post-Conviction Case–Rule 6.10...........................9-12
§ 9.11 Some Tips for Crafting an Effective Brief ..............................................9-12
Chapter 10
ORAL ARGUMENT
§ 10.1 Introduction..................................................................................................10-1
§ 10.2 Preparation....................................................................................................10-1
§ 10.3 Format of Hearings in the Supreme Court.............................................10-3
§ 10.4 Format of Hearings Before the Court of Appeals.................................10-4
§ 10.5 Introductory Phase of Argument..............................................................10-5
§ 10.6 Body of Argument.......................................................................................10-6
§ 10.7 Delivery and Style.........................................................................................10-8
§ 10.8 Conclusion....................................................................................................10-9
§ 10.9 Rebuttal..........................................................................................................10-9
§ 10.10 Final Thoughts...........................................................................................10-10
§ 10.11 Suggestions for Further Reading.............................................................10-10
Chapter 11
DISCIPLINARY PROCEEDINGS
I. ATTORNEY DISCIPLINE
§ 11.1 History...........................................................................................................11-1
§ 11.2 Jurisdiction....................................................................................................11-1
§ 11.3 Kansas Disciplinary Administrator...........................................................11-1
§ 11.4 Kansas Board for Discipline of Attorneys..............................................11-2
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§ 11.5 Complaints....................................................................................................11-2
§ 11.6 Disciplinary Investigations – Duties of the Bar and Judiciary..............11-3
§ 11.7 Disciplinary Procedure................................................................................11-5
§ 11.8 Temporary Suspension................................................................................11-6
§ 11.9 Attorney Diversion Program......................................................................11-6
§ 11.10 Informal Admonition..................................................................................11-7
§ 11.11 Formal Hearing and Procedural Rules of the
Kansas Board for Discipline of Attorneys.........................................11-8
§ 11.12 Probation.....................................................................................................11-10
§ 11.13 ABA Standards for Imposing Lawyer Sanctions...................................11-11
§ 11.14 Disabled Attorneys....................................................................................11-13
§ 11.15 Proceedings Before the Supreme Court.................................................11-14
§ 11.16 Scope of Review and Standard of Review.............................................11-15
§ 11.17 Oral Argument............................................................................................11-15
§ 11.18 Supreme Court Opinions..........................................................................11-17
§ 11.19 Additional Procedural Rules.....................................................................11-18
§ 11.20 Voluntary Surrender of License to Practice Law..................................11-18
§ 11.21 Reinstatement..............................................................................................11-19
§ 11.22 Lawyers’ Fund for Client Protection .....................................................11-20
II. JUDICIAL DISCIPLINE
§ 11.23 § 11.24 § 11.25 § 11.26 § 11.27 § 11.28 § 11.29 § 11.30 History.........................................................................................................11-21
Jurisdiction/Governing Rules..................................................................11-21
Staff . ............................................................................................................11-21
Initiating a Complaint................................................................................11-22
Commission Review and Investigation...................................................11-23
Disposition of Docketed Complaints.....................................................11-24
Confidentiality.............................................................................................11-25
Formal Proceedings...................................................................................11-25
Chapter 12
FORMS
§ 12.1 Application to Take a Civil Interlocutory Appeal
Under K.S.A. 60-2102(c)........................................................................12-1
§ 12.2 Petition for Judicial Review of an Order of the Court of Tax Appeals12-5
§ 12.3 Petition for Judicial Review—Workers Compensation Cases...............12-9
§ 12.4 Request for Certification of Record
—Workers Compensation Cases........................................................12-13
§ 12.5 Notice of Appeal—Supreme Court........................................................12-15
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§ 12.6 Notice of Appeal—Court of Appeals...................................................12-17
§ 12.7 Notice of Cross-Appeal............................................................................12-19
§ 12.8 Fax Transmission Sheet.............................................................................12-21
§ 12.9 Motion for Release After Conviction......................................................12-23
§ 12.10 Docketing Statement—Civil Appeal.......................................................12-25
§ 12.11 Docketing Statement—Civil Cross-Appeal...........................................12-29
§ 12.12 Docketing Statement—Criminal.............................................................12-31
§ 12.13 Answer to Docketing Statement..............................................................12-35
§ 12.14 Motion to Docket Appeal Out of Time................................................12-37
§ 12.15 Admission Pro Hac Vice of Out-of-State Attorney:
Kansas Attorney’s Motion...................................................................12-39
§ 12.16 Admission Pro Hac Vice of Out-of-State Attorney:
Out-of-State Attorney’s Verified Application...................................12-41
§ 12.17 Entry of Appearance.................................................................................12-45
§ 12.18 Motion to Withdraw as Appointed Counsel..........................................12-47
§ 12.19 Request for Transcript...............................................................................12-49
§ 12.20 Request for Additions to the Record on Appeal...................................12-51
§ 12.21 Motion to Consolidate Appeals...............................................................12-53
§ 12.22 Motion to Transfer to Supreme Court...................................................12-55
§ 12.23 Motion for Extension of Time to File Brief ........................................12-57
§ 12.24 Motion to Immediately File Brief Out of Time...................................12-59
§ 12.25 Motion to Exceed Page Limitations........................................................12-61
§ 12.26 Motion to Correct Brief ...........................................................................12-63
§ 12.27 Motion to Substitute Corrected Brief ....................................................12-65
§ 12.28 Motion to Substitute Parties.....................................................................12-67
§ 12.29 Notice of Voluntary Dismissal................................................................12-69
§ 12.30 Motion for Involuntary Dismissal...........................................................12-71
§ 12.31 Application to File Amicus Brief . ............................................................12-73
§ 12.32 Suggestion for Place of Hearing.............................................................12-75
§ 12.33 Motion for Modification or Rehearing...................................................12-77
§ 12.34 Motion for Attorney Fees and Costs......................................................12-79
§ 12.35 Briefing Checklist.......................................................................................12-81
§ 12.36 Sample Brief ...............................................................................................12-85
§ 12.37 Complaint Form: Attorney Discipline................................................. 12-105
§ 12.38 Surrender Letter—Voluntary Surrender
of License to Practice Law............................................................... 12-109
§ 12.39 Complaint Form: Judicial Discipline.................................................... 12-111
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Appendix A JUSTICES AND JUDGES OF THE APPELLATE COURTSA-1
Appendix B TIMETABLE FOR STEPS IN AN APPEAL................................ B-1
Appendix C CITATION GUIDE............................................................................ C-1
INDEXES
General.............................................................................................................................. I-1
Authorities....................................................................................................................... I-21
Cases................................................................................................................................ I-23
Rules................................................................................................................................. I-33
Statutes............................................................................................................................ I-37
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History of the Appellate Courts
1-
CHAPTER 1
History of the
Appellate Courts
Even prior to the advent of statehood, appellate justice in Kansas was
administered by three justices of a Supreme Court. With statehood and an
increasing population, the volume of litigation and the number of appeals
grew. Several separate revisions of the appellate court system have taken
place over the years in an effort to meet the citizens’ growing demands on
the appellate judiciary.
The first revision was the addition of three commissioners in the late
1880’s to assist the three justices. Then, in 1893, the commissioner system
was abolished and, in 1895, the first Court of Appeals of Kansas came into
being. There were actually two such courts, a northern department and a
southern department, each with three judges. Each department had three
divisions—an eastern, a central, and a western. In the northern department
the eastern division sat at Topeka, the central division at Concordia, and the
western at Colby. In the southern department the eastern division of the
court sat at Fort Scott, the central at Wichita, and the western at Garden City.
The decisions of those courts may be found in the Kansas Appeals Reports,
Volumes 1 through 10.
The third revision occurred in 1901, when the Court of Appeals was
abolished and the Supreme Court was enlarged to seven justices.
By 1963 the volume of cases in the Supreme Court had substantially
increased and the legislature again authorized the appointment of a
commissioner to aid the court in disposition of appeals and writing of
opinions. The fifth revision was the creation of a second commissioner
position in 1965.
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History of the Appellate Courts
Effective January 10, 1977, the present Court of Appeals was established
consisting of seven judges. At the same time the two commissioner positions
on the Supreme Court were abolished, reducing that court to its present
complement of seven justices. The two commissioners, then in office, by
statute became the first members of the newly-created Court of Appeals.
Other members were appointed by the Governor.
On July 1, 1987, the Court of Appeals was expanded from seven to ten
members. On January 1, 2003, an eleventh position was created, on January
1, 2005, a twelfth, on January 1, 2008, a thirteenth, and on July 1, 2013, a
fourteenth position was created. The modern Court of Appeals has no
geographical divisions but is authorized to sit in any courthouse in the state.
The Supreme Court sits in Topeka.
For a more detailed history of the Kansas Appellate Courts, see Requisite
Learning and Good Moral Character: A History of the Kansas Bench and Bar, Robert
W. Richmond, editor, Kansas Bar Association (1982).
A list of the justices of the Supreme Court since statehood, its
commissioners, and the judges of the Court of Appeals appears at Appendix
A.
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Personnel of the Appellate Courts
2-
CHAPTER 2
Personnel of the
Appellate Courts
§ 2.1 The Supreme Court
The Supreme Court consists of seven justices who serve six-year
terms, subject to retention by the voters. The justice who is senior in
continuous tenure serves as Chief Justice. In the event more than one
have the same tenure, the oldest is deemed the senior. Kan. Const. art.
3, § 2.
The Chief Justice has general administrative supervision over the
affairs of the court and of the unified judicial department of the state. In
the latter function, the Chief Justice is assisted by the judicial administrator
and by the departmental justice of each of the six judicial departments.
See Judicial Department Reform Act of 1965, K.S.A. 20-318 et seq.
Each justice is assisted by two research attorneys who must be
admitted to practice law in this state. Research attorneys are usually
recent law school graduates, and their customary term of service is either
one or two years. Their primary function is to prepare memoranda for
their respective justices and generally assist on cases assigned to their
justice for opinion writing. A central core of attorneys performs case
management functions and conducts research for the court as a whole as
well as individual research projects as directed.
Shared executive assistants type opinions, orders, correspondence,
and memoranda; maintain the justices’ files; deal with the court clerk and
reporter of decisions; compile and index volumes of the justices’ opinions;
and generally assist the justices in handling the administrative duties of
the office. The Chief Justice employs a single executive assistant.
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§ 2.2 The Court of Appeals
The Court of Appeals consists of thirteen judges who serve four-year
terms, subject to retention by the voters. One of the judges is appointed
by the Supreme Court to serve as Chief Judge. The court normally sits
in panels of three judges, with panel members assigned on a rotating,
random basis by the Chief Judge. By statute the Chief Judge presides
over panels on which he or she sits and designates the presiding judge on
other panels.
Each judge employs two research attorneys and an executive assistant
who perform essentially the same functions as their counterparts with
the Supreme Court. The Court of Appeals also has a central core of
attorneys who perform case management functions and conduct research
as directed.
§ 2.3 Clerk of the Appellate Courts
The clerk of the Supreme Court is a constitutional officer who, by
statute, is also clerk of the Court of Appeals. The clerk is, therefore,
referred to as the clerk of the appellate courts. Rule 1.01(e).
The office of the clerk of the appellate courts is located in the
southwest corner of the third floor of the Kansas Judicial Center, Room
374, 301 S.W. 10th Avenue, Topeka, Kansas 66612-1507. The office is
open Monday through Friday from 8:00 a.m. to 5:00 p.m.
In addition to processing cases in the two appellate courts, the
clerk’s office is responsible for a wide variety of activities including
the conduct of bar examinations, record-keeping of admissions to the
Kansas bar, and annual attorney registration. The clerk is also secretary
for the Judicial Qualifications Commission, the Client Protection Fund
Commission, the Board of Law Examiners, the Board of Examiners of
Court Reporters, and the Supreme Court Nominating Commission. The
clerk conducts elections for the lawyer members of the Supreme Court
Nominating Commission and also conducts elections in seventeen of the
thirty-one judicial districts to elect lawyer members of the District Judicial
Nominating Commissions.
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§ 2.4 Appellate Reporter
The reporter of the Supreme Court is a constitutional officer and, by
statute, also serves as reporter of the Court of Appeals. This position is
generally referred to as the reporter of decisions. The reporter’s primary
function is to publish the official reports of those opinions that each
court has designated for publication.
Opinions of the Supreme Court designated by the court for
publication are published in an advance sheet after each opinion day of
that court. Court of Appeals opinions that are ready for publication form
a separate section at the back of each advance sheet. For each court
a bound volume is printed when the advance sheets exceed 750 pages.
Pagination in the bound volumes will conform to that in the advance
sheets.
In a formal opinion the reporter adds the “catch-line,” which appears
in the published opinion in italics at the beginning of each paragraph of
the syllabus. This language is added for indexing purposes only and is not
part of the syllabus approved by the court.
All opinions of the appellate courts, whether or not designated for
publication, are submitted to the reporter before filing. Personnel in the
reporter’s office make a source check on all authorities cited; proofread all
quotations; check dates and other references to the record for accuracy;
and check for typographical errors, punctuation, grammar, and usage.
§ 2.5 Judicial Administrator
The judicial administrator, a statutory officer, implements the
policies of the Supreme Court in the exercise of its general administrative
authority over all courts in this state. The judicial administrator’s duties
include assistance in the management of fiscal affairs in the unified judicial
system, presentation of educational programs for judges and other court
personnel, the collection and reporting of judicial statistical information,
and assistance in the assignment of district judges beyond their districts
and of retired judges.
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§ 2.6 Law Librarian
The law librarian, a statutory officer, is responsible for the staffing
and operation of the Kansas Supreme Court Law Library. The library
supports the research needs of the judicial branch but also numbers among
its users employees of state agencies and the state legislature, attorneys
from across the state, and the public. The library’s extensive collection
includes relevant statutes and reports for all state and federal entities.
The library staff is also responsible for the sale and distribution of
Kansas Reports and Kansas Court of Appeals Reports.
§ 2.7 Disciplinary Administrator
The disciplinary administrator, an officer of the Supreme Court
appointed pursuant to statutory authority, reviews complaints of
misconduct against lawyers, conducts investigations, holds public hearings
when appropriate, and recommends discipline to the Supreme Court in
serious matters.
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CHAPTER 3
Internal Operating
Procedures
I.
SUPREME COURT
§ 3.1 Hearings
After an appeal is docketed, it is subjected to the court’s screening
procedures. Most appeals are placed on the general calendar with oral
argument limited to 15 minutes per side. Either the appellant or the
appellee may request 20, 25, or 30 minutes by printing “oral argument”
on the lower right portion of the front of the brief cover, followed by the
desired amount of time. The appellant and the appellee will be granted the
same amount of time and the amount of time granted will be designated
on the oral argument calendar. See Rule 7.01(e).
Appeals meeting the criteria of Rule 7.01(c)(2) may be placed on
a summary calendar. Summary calendar appeals are generally deemed
submitted on the record and the briefs. However, the parties will be
notified if an appeal is placed on a summary calendar and, within 14 days
of receiving notification, any party may file a motion for oral argument.
If the motion is granted, oral argument will be limited to 15 minutes per
side, unless sufficient reason is given to grant additional time. See also
§ 7.38, infra.
The Supreme Court regularly sits in Topeka six times a year for one
week periods. Shorter special sessions may be scheduled as needed. The
Chief Justice sets the hearing docket four to six weeks ahead of each
session. The court gives priority to expedited appeals and hears other
appeals in the order docketed. See Rule 7.01(b).
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At the time the hearing docket is prepared, each appeal is assigned
to an authoring justice. A research attorney, under supervision of the
assigned justice, prepares a prehearing memorandum setting forth the
essential facts, the contentions of the parties, the main authorities relied
upon, any additional authorities discovered, and the attorney’s analysis.
Those prehearing memoranda are distributed to all justices prior to oral
argument, eliminating the need for extensive factual recitation during
arguments.
§ 3.2 Decision
The Supreme Court’s decision conference begins on the day an
appeal is argued with additional conferences scheduled as needed. The
preassigned cases are presented to the court by the authoring justice.
The form of the opinion, whether formal (published) or memorandum
(unpublished), is tentatively determined at the decision conference.
§ 3.3 Opinions
After the authoring justice has drafted an opinion, the opinion is
circulated among the other justices for comments and suggestions. When
a written dissent or concurrence is attached, the original opinion and the
dissent or concurrence are returned to the justice writing the opinion and
then both are circulated to all justices.
When approved, opinions generally are filed on Fridays at 9:30 a.m.
in the appellate clerk’s office. Copies are mailed to counsel and the district
judge on the day of filing. See Rules 7.03 and 7.04. Published opinions are
also posted to the Kansas Judicial Branch website each Friday, generally
within ten minutes of being filed in the clerk’s office. See www.kscourts.
org/Cases-and-Opinions/opinions.
§ 3.4 Motions and Original Actions
Routine motions may be ruled on by the Chief Justice. Other
motions are assigned to the justices for presentation to the full court based
on a predetermined rotation. Those motions are taken up at motions
conferences scheduled by the Chief Justice or, if expedited consideration
is warranted, at special ad hoc meetings.
Petitions in original actions (quo warranto, mandamus, habeas corpus)
are assigned to justices, except the Chief Justice, on a predetermined
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rotation basis for presentation to the full court in conference. The court
takes appropriate action under Rule 9.01.
Motions for rehearing are referred to the authoring justice; that
justice presents the motion in conference to the full court. Four votes
are required to grant or deny a motion for rehearing or modification. See
Supreme Court Internal Operating Procedure V.
§ 3.5 Petitions for Review
Petitions for review of Court of Appeals decisions are assigned to
individual justices for consideration and suggested disposition. Three
votes are sufficient to grant a petition for review. When a petition for
review is granted, the appeal is processed as provided in Rule 8.03,
scheduled for oral argument, and assigned to an authoring justice.
The Supreme Court’s denial of a petition for review does not
constitute an expression of opinion on the merits of the case. Rule
8.03(f).
If the Supreme Court determines that review has been improvidently
granted, it may issue an order stating that review was improvidently granted
and that the Court of Appeals opinion or disposition of the case is final.
Rule 8.03(h)(1). Other possible dispositions, short of a formal opinion,
for cases in which review has been granted are discussed in Rule 8.03(h).
§ 3.6 Disqualification and Recusal
A justice who is disqualified or who otherwise recuses from an appeal
does not participate in the consideration or decision of that appeal. This
situation can create unique issues in the court’s ability to reach a decision.
If the remaining justices are evenly divided as to the decision, the decision
appealed from is affirmed. See NEA-Topeka v. U.S.D No. 501, 269 Kan.
534, 540, 7 P.3d 1174 (2000) (discussing prior appeal in which trial court’s
judgment controlled in light of an equally divided Supreme Court); Pierce
v. Pierce, 244 Kan. 246, 767 P.2d 292 (1989) (review of Court of Appeals
decision by equally divided Supreme Court); Paulsen v. U.S.D. No. 368, 239
Kan. 180, 182, 717 P.2d 1051 (1986) (review of trial court decision by
equally divided Supreme Court). In all cases, whether appeals or original
actions, four votes are required for a decision. See Kansas Const. art. 3,
§ 2.
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Accordingly, when one or more justices is disqualified or recused
from an appeal involving an original action or an issue of great public
importance, the court may assign an active district judge, an active
Court of Appeals judge, or a retired justice or judge to sit with the court
and participate fully in the hearing and decision process in lieu of the
disqualified or recused justice. Kansas Const. art. 3, § 6(f); K.S.A. 202616; K.S.A. 20-3002(c).
See also “Supreme Court Internal Operating Procedures” in the
Kansas Court Rules Annotated.
II.
COURT OF APPEALS
§ 3.7 Prehearing
All cases are screened by the Chief Judge’s staff as soon as the
docketing statement is filed. The purpose is to categorize the cases for
complexity of the factual and legal issues involved, determine whether
jurisdictional questions exist, and generally assist in the process of
calendaring the case in either of the two appellate courts.
After the appellant’s and appellee’s briefs are filed, cases are screened
by senior staff attorneys to determine appropriate calendaring and to
focus research. Cases meeting the criteria of Rule 7.02(c)(2) are placed
on the Court of Appeals summary calendar; other cases are placed on the
general calendar.
Summary calendar cases are deemed submitted to the court on the
briefs without oral argument. Any party who wants oral argument on a
case assigned to the summary calendar docket may file a motion requesting
oral argument. The written motion for oral argument must be served on
all parties and filed with the appellate court clerk within 14 days after
notice of calendaring has been mailed by the clerk. Rule 7.02(c)(4).
In cases assigned to the general calendar or where a motion for oral
argument has been granted, oral argument is limited to 15 minutes per side.
Either the appellant or appellee may request the court to grant additional
time for oral argument by printing “oral argument” on the lower right
portion of the brief cover, followed by the desired amount of time. If
oral argument is granted, the court will designate the amount of time
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allowed on the published docket. The appellant and the appellee will be
granted the same amount of time. Rule 7.02(f).
About 60 days ahead of each scheduled hearing the Chief Judge sets
the docket. Cases expedited by statute, or by court policy, are the first
to be assigned to a docket. A copy of the docket, specifying when and
where the case will be heard, is mailed to each counsel of record. Factors
taken into account in setting each hearing docket include: where the
cases arose; suggestions by counsel as to the desired location for hearing
(Rule 7.02[d][3]); suitability and availability of courtroom facilities; and
the number of cases in a given area that are ready to be argued. The
court hears cases in panels of three judges each. Normally, five panels
sit simultaneously, each in a different location, once a month for eleven
months of the year. The Court of Appeals often uses retired senior
judges to complete panels, two full-time Court of Appeals judges plus
one senior judge on a panel.
Each case is tentatively assigned by the Chief Judge to a judge on
the hearing panel. Under judicial supervision, the research attorney
for the judge to whom the case is assigned then prepares a prehearing
memorandum setting forth the essential facts, the contentions of the
parties, the main authorities relied upon, any additional authorities
discovered, and the attorney’s analysis.
The prehearing memorandum is distributed to each judge on the
panel at least one week prior to hearing. Before the hearing, each judge
on the panel reads at least the briefs and the prehearing memorandum.
When feasible, a prehearing conference of the panel members may be
held to sharpen issues and guide questions to counsel from the bench.
§ 3.8 Decision
Each case is decided by the panel that heard it at a conference held
after the hearing. Time permitting, decision conferences are often held
after the day’s hearings are concluded. Otherwise, they begin the day after
a session is completed, although they may be adjourned from time to time
to permit further research. If the judge to whom the case was tentatively
assigned is in the majority, that judge prepares the opinion. If that judge is
in the minority, the presiding judge reassigns the case to another judge in
the majority. The now-dissenting judge receives a case of the transferee’s
choice. At the decision conference, a tentative decision is made as to
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whether a formal (published) or memorandum (unpublished) opinion is
required. Rule 7.04.
§ 3.9 Opinions
Draft opinions are circulated first to members of the hearing panel
for comments, suggestions, and approval. Any dissent is returned with
the original opinion to the author of the majority opinion. If the majority
opinion is modified in response to the dissent, it is submitted again first
to the dissenter for possible modification of the dissent. Each published
opinion is circulated to the entire court, but only after judges joining in
the majority opinion and dissent are satisfied with the respective opinions.
Further modifications to the opinions may be made but, if modifications
go beyond formalities of punctuation or style, each member of the court
is given an opportunity to read and comment on the opinion in final form
before filing.
All opinions ready for filing are taken to the Chief Judge for delivery
to the clerk for filing. Copies are mailed to counsel and the district judge
at the same time the opinions are officially filed and made public at 9:30
a.m. on Friday.
§ 3.10Motions
All routine motions not disposed of by the clerk under Rule 5.03 are
referred to the court’s motions attorney who works under the supervision
of a motions panel composed of three Court of Appeals judges designated
by the Chief Judge. Each member of the panel serves as motions judge
on a rotating basis. The motions judge is responsible for ruling on most
routine motions that come before the court. The motions judge has
discretion to refer any matter to the full motions panel for decision.
Motions for rehearing are decided by the panel that decided the case.
Motions for rehearing en banc are distributed to all members of the court
and, on the request of any member of the court, a nonbinding poll is
taken of the entire court for the guidance of the panel ruling on the
motion.
§ 3.11 Disqualification
Before a docket is set, the Chief Judge circulates to each judge on
the panel a list showing case captions, the name of the trial judge, and
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the names of counsel in each case. Each judge examines the list and
reports to the Chief Judge if disqualified in a case. Another judge is
then assigned to sit with the panel on that case, or the case is assigned to
another panel.
See also “Court of Appeals Internal Operating Procedures” in the
Kansas Court Rules Annotated.
III. CONFIDENTIALITY
§ 3.12Confidentiality in the Appellate Courts
The integrity of the judicial process requires that many of the
internal workings of the appellate courts be held in strictest confidence.
Justices, judges, and court staff and personnel shall hold confidential the
results of a decision conference or the views expressed by, or vote of, any
participant. Likewise, the identity of a justice or judge to whom a case has
been assigned is confidential until the opinion is filed. If the opinion is
filed per curiam, the identity of the author remains confidential indefinitely.
Copies of all writings and papers concerning court matters, including the
contents of research memoranda, are confidential.
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CHAPTER 4
Original Actions in
the Appellate Courts
§ 4.1 Exercise of Concurrent Jurisdiction
The Kansas Supreme Court has original jurisdiction in quo warranto,
mandamus, and habeas corpus proceedings. Kansas Constitution art. 3,
§ 3. The Court of Appeals has original jurisdiction only in habeas corpus
proceedings. K.S.A. 60-1501(a). Supreme Court Rule 9.01 establishes the
procedures for original actions in the appellate courts.
Since district courts also have concurrent jurisdiction over quo
warranto, mandamus, and habeas corpus proceedings, those actions
should be filed in the district court. The original jurisdiction of the
Kansas Supreme Court will not ordinarily be exercised if adequate relief
appears to be available in the district court. See Krogen v. Collins, 21 Kan.
App. 2d 723, 724, 907 P.2d 909 (1995).
If relief is available in the district court, the petition must state the
reasons why the action is brought in the appellate court instead of the
district court. Rule 9.01(b). If the appellate court finds that adequate
relief is available in the district court, the action may be dismissed or
ordered transferred to the appropriate district court. Rule 9.01(b). Even
if district court relief is available, the appellate court has discretion to
exercise its original jurisdiction. Comprehensive Health of Planned Parenthood
v. Kline, 287 Kan. 372, 405, 197 P.3d 370 (2008).
§ 4.2 Procedure Upon Filing an Original Action
The petition must contain a statement of the facts necessary to
an understanding of the issues presented and a statement of the relief
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sought. The petition must be accompanied by a short memorandum of
points and authorities, and such documentary evidence as is available and
necessary to support the facts alleged. Rule 9.01(a).
PRACTICE NOTE: Since the appellate court may
not choose to order further briefing, the memorandum
should be complete as well as concise. Assume that there
will not be an opportunity to present further briefing.
An original and 8 legible copies of petitions in original actions must
be filed with the clerk of the appellate courts. Respondents or their
counsel of record must be served. Rule 9.01(a).
Habeas corpus petitions must be verified. They must state the place
where the person is restrained and by whom; the cause or pretense of the
restraint; and why the restraint is wrongful. Petitioners who are in the
custody of the Department of Corrections must include a list of all civil
actions, including habeas corpus actions, they have participated in or filed
in any state court within last five years. K.S.A. 60-1502.
PRACTICE NOTE: Where inconsistency or conflict
exists between the procedure provided in the statutes
and Rule 9.01, the latter governs actions filed in the
appellate courts. See State v. Mitchell, 234 Kan. 185, 19395, 672 P.2d 1 (1983).
§ 4.3 Docket Fees
The plaintiff in an original action in quo warranto or mandamus
must pay a docketing fee of $125 and any applicable surcharge. Upon
receipt of the prescribed docket fee or an affidavit of indigency, the clerk
of the appellate courts must docket the original proceeding and submit
the petition to the court. Rule 9.01(a).
No docket fee will be charged to file a petition for writ of habeas
corpus. Rule 9.01(a). No docket fee will be required for habeas corpus
actions in the district court as long as the petitioner complies with the
poverty affidavit provisions of K.S.A. 60-2001(b). K.S.A. 60-1501(a).
§ 4.4 Disposition
In the Kansas Supreme Court, petitions in an original action (quo
warranto, mandamus, habeas corpus) are assigned for initial consideration
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and recommendation to an individual justice (except the Chief Justice), on
a rotating basis. Supreme Court Internal Operating Procedure II(B)(1).
The petition is then presented to the full court in conference. If the court
is of the opinion the relief should not be granted, it will deny the petition.
Rule 9.01(c)(1). If the right to the relief sought is clear and it is apparent
that no valid defense to the petition can be offered, the relief sought may
be granted ex parte. Rule 9.01(c)(2).
If the petition is neither granted nor denied ex parte, the court will
order that the respondent either show cause why the relief should not
be granted or file an answer to the petition within a fixed time. Rule
9.01(c)(3). If the petition, response, and record clearly indicate the
appropriate disposition, the appellate court will enter an order without
further briefs or argument. Rule 9.01(e).
If the petition, response and record do not clearly indicate the
appropriate disposition, the court will enter an order fixing dates for
the filing of briefs. The case will proceed thereafter under the rules of
appellate procedure. Rule 9.01(e).
Original actions in habeas corpus filed in the Court of Appeals are
initially considered by a three-judge motions panel. If the panel does
not grant or deny the petition ex parte, a procedure similar to that in the
Supreme Court is followed.
Since the appellate courts have original jurisdiction, no mandate
to the clerk of the district court will issue when the decision becomes
final. See K.S.A. 60-2106. The Kansas Court of Appeals has appellate
jurisdiction over final orders of the district courts relating to mandamus,
quo warranto, or habeas corpus. K.S.A. 60-2102(a)(2).
§ 4.5 The Record
The record in cases of original jurisdiction in the appellate courts
consists of the petition, the response, and any documents accompanying
them. The matter may be referred to a district court judge or to a
commissioner for the purpose of taking testimony and making a report
containing recommended findings of fact if it appears that there are
disputed questions of material fact which can only be resolved by oral
testimony. Rule 9.01(d).
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§ 4.6 Quo Warranto
“Quo warranto is an extraordinary remedy available when any person
usurps, intrudes into, or unlawfully holds or exercises any public office. A
writ of quo warranto may issue when it is alleged that the separation of
powers doctrine has been violated.” State ex rel. Morrison v. Sebelius, 285 Kan.
875, Syl. ¶1, 179 P.3d 366 (2008). “An original action in quo warranto is an
appropriate procedure for questioning the constitutionality of a statute.”
Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.3d 553 (2003); State ex rel. Stephan
v. Martin, 230 Kan. 747, 748, 641 P.2d 1011 (1982). Relief in the nature
of quo warranto and mandamus is discretionary. The Kansas Supreme
Court may properly entertain an action in quo warranto if it decides the
issue is of sufficient public concern. Wilson v. Sebelius, 276 Kan. at 90.
Since quo warranto is a discretionary and extraordinary remedy, it should
only be used in extreme cases and where no other relief is available. State,
ex rel., v. United Royalty Co., 188 Kan. 443, 461, 363 P.2d 397 (1961). K.S.A.
60-1201 et seq. sets forth the procedure for quo warranto actions.
§ 4.7 Mandamus
Mandamus is a proceeding to compel some inferior court, tribunal,
board, or some corporation or person to perform a specified duty, which
duty results from the office, trust, or official station of the party to
whom the order is directed, or from operation of law. K.S.A. 60-801.
The Supreme Court may properly entertain an action in mandamus if it
decides the issue is of sufficient public concern. Wilson v. Sebelius, 276
Kan. 87, 90, 72 P.3d 553 (2003). An original action in mandamus is an
appropriate procedure for compelling an official to perform some action.
Legislative Coordinating Council v. Stanley, 264 Kan. 690, 697, 957 P.2d 379
(1998). Mandamus is a proper remedy where the essential purpose of the
proceeding is to obtain an authoritative interpretation of the law for the
guidance of public officials in their administration of the public business,
notwithstanding the fact that there also exists an adequate remedy at law.
State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, Syl. ¶ 5, 112 P.3d
131 (2005). Someone seeking an order (or writ) of mandamus must show
that the respondent has a clear legal duty to take the action at issue. Kansas
Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642 (2010).
Mandamus provides the remedy of compelling a public officer to
perform a clearly-defined duty imposed by law that does not involve the
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exercise of discretion. State ex rel. Morrison v. Sebelius, 285 Kan. 875, Syl.
¶ 21, 179 P.3d 366 (2008). In fact, courts generally require public officials
to perform only those acts that are strictly ministerial in nature, meaning
those acts the official clearly is obligated to perform in a prescribed manner,
in obedience to the mandate of legal authority. Schmidtlien Electric, Inc. v.
Greathouse, 278 Kan. 810, 833, 104 P.3d 378 (2005). Whether to issue a
mandamus order depends on statutory interpretation regarding the duties
of the officials involved. Ramcharan-Maharajh v. Gilliland, 48 Kan. App. 2d
137, 139-40, 286 P.3d 216 (2012). Mandamus is generally appropriate to
compel a former public officer to return property belonging to the office.
Comprehensive Health of Planned Parenthood v. Kline, 287 Kan. 372, Syl. ¶ 9,
197 P.3d 370 (2008). Mandamus has been recognized as a means for
nonparties to address court orders directed to them from which they have
no statutory right to appeal. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan.
597, 618, 244 P.3d 642 (2010) (discovery order directed to nonparty). See
also Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc., 292
Kan. 285, 255 P.3d 1186 (2011) (mandamus was appropriate avenue for
county to pursue, when county and manager of rail-trail did not agree on
amount of bond manager was required to post pursuant to the Kansas
Recreational Trails Act).
Mandamus is not a common means of obtaining redress but is
available only in rare cases, and as a last resort, for causes which are really
extraordinary. Mandamus is not the correct action where a plain and
adequate remedy at law exists. Bohanon v. Werholtz, 46 Kan. App. 2d 9,
12-13, 257 P.3d 1239 (2011) (inmate’s mandamus action against Secretary
of Corrections was improper because a plain and adequate remedy at law
existed as provided under the habeas corpus statute).
The Supreme Court’s jurisdiction is plenary. It may be exercised
to control the actions of inferior courts over which the Supreme Court
has superintendent authority. State ex rel. Stephan v. O’Keefe, 235 Kan.
1022, 1024, 686 P.2d 171 (1984). Relief in the nature of mandamus is
discretionary. Wilson v. Sebelius, 276 Kan. at 90.
In addition to constitutional authority, the Kansas Supreme Court is
guided by the Kansas statutes, as the procedure for mandamus actions is
set forth in K.S.A. 60-801 et seq.
While mandamus will not ordinarily lie at the instance of a private
citizen to compel the performance of a public duty, where an individual
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shows an injury or interest specific and peculiar to himself, and not one
that he shares with the community in general, the remedy of mandamus
and the other extraordinary remedies are available. Mobil Oil Corp. v.
McHenry, 200 Kan. 211, 243, 436 P.2d 982 (1968).
§ 4.8 Habeas Corpus
K.S.A. 60-1501 et seq. sets forth the procedure for habeas corpus
actions. An original action in habeas corpus is an appropriate vehicle for
challenging a trial court’s pretrial denial of a claim of double jeopardy
under the Fifth Amendment to the United States Constitution and Section
10 of the Kansas Constitution Bill of Rights. In re Berkowitz, 3 Kan. App.
2d 726, 730, 602 P.2d 99 (1999).
Incarcerated people may challenge the circumstances of their
confinement, including administrative actions of the penal institution,
under the provisions of K.S.A. 60-1501. State v. Mejia, 20 Kan. App. 2d
890, 892, 894 P.2d 202 (1995). See also Safarik v. Bruce, 20 Kan. App. 2d
61, 66-67, 883 P.2d 1211, rev. denied 256 Kan. 996 (1994).
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CHAPTER 5
Appellate Jurisdiction
I.
CREATION OF THE KANSAS APPELLATE COURTS
§ 5.1 Constitutional and Statutory Authority
The Kansas Constitution provides that the judicial power of the
state is vested in one court of justice, which consists of one Supreme
Court with general administrative authority over all other courts, district
courts, and “such other courts as are provided by law.” Kan. Const. art.
3, § 1. K.S.A. 20-3001 provided for the creation of the Kansas Court of
Appeals.
The Supreme Court has original jurisdiction in proceedings in quo
warranto, mandamus, and habeas corpus, and “such appellate jurisdiction
as may be provided by law.” Kan. Const. art. 3, § 3. The Court of Appeals
has “such jurisdiction over appeals in civil and criminal cases and from
administrative bodies and officers of the state as may be prescribed by
law.” K.S.A. 20-3001. The Court of Appeals also has “such original
jurisdiction as may be necessary to the complete determination of any
cause on review.” K.S.A. 20-3001.
Jurisdiction to entertain an appeal is conferred by statute. State v.
Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001); In re J.D.B., 259 Kan. 872,
Syl. ¶ 1, 915 P.2d 69 (1996); City of Wichita v. Smith, 31 Kan. App. 2d 837,
839, 75 P.3d 1228 (2003). “The Kansas Constitution gives to the district
and appellate courts jurisdiction to hear appeals only as provided by law.
The Kansas Constitution gives the legislature the power to grant, limit,
and withdraw the appellate jurisdiction to be exercised by the courts.”
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State v. Lewis, 27 Kan. App. 2d 134, Syl. ¶ 3, 998 P.2d 1141, rev. denied 269
Kan. 938 (2000). “The right to appeal is entirely statutory….” State v.
Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). See also State v. Gill,
287 Kan. 289, 293-94, 196 P.3d 369 (2008); In re J.D.B., 259 Kan. 872, Syl.
¶ 1. Parties cannot create appellate jurisdiction. See State v. McCarley, 287
Kan. 167, 175, 195 P.3d 230 (2008); State v. Asher, 28 Kan. App. 2d 799,
800, 20 P.3d 1292 (2001). When a record discloses a lack of jurisdiction,
the appellate court must dismiss the appeal. State v. Gill, 287 Kan. at 294;
In re J.D.B., 259 Kan. 872, Syl. ¶ 1.
II.
APPELLATE JURISDICTION OF THE SUPREME
COURT IN CRIMINAL CASES
§ 5.2 Direct Appeals to the Supreme Court
Any appeal permitted to be taken from a final judgment of the
district court in a criminal case is taken to the Court of Appeals, except in
those cases reviewable by law in the district court and those cases where
direct appeal to the Supreme Court is required. K.S.A. 22-3601(a). Direct
appeal to the Supreme Court is required in the following cases:
▪ In any case in which a state or federal statute has been held
unconstitutional. K.S.A. 22-3601(b)(1).
▪ By all criminal defendants who have: (1) been convicted of a
class A felony; or (2) been sentenced to a maximum sentence
of life imprisonment. K.S.A. 22-3601(b)(2) and (3).
▪ By some criminal defendants who have been convicted of
an off-grid crime committed after June 30, 1993. K.S.A. 223601(b)(4). This statute does not apply to some off-grid
crimes as set forth in § 5.3, infra.
PRACTICE NOTE: Off-grid crimes under the
Kansas Sentencing Guidelines Act (KSGA) have been
in effect for more than 20 years. Appeals involving
class A felonies under the pre-KSGA criminal code are
becoming increasingly more rare.
A conviction resulting in imposition of a death sentence is subject
to automatic review by an appeal to the Kansas Supreme Court. State
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v. Cheever, 295 Kan. 229, 233, 284 P.3d 1007 (2012), cert. granted in part
on other grounds, 133 S. Ct. 1460, __ U.S. __ (2013); State v. Hayes, 258
Kan. 629, 638, 908 P.2d 597 (1995); K.S.A. 21-6619(a); K.S.A. 21-6629(c).
The procedure to be followed on appeal following imposition of a death
penalty is set out in Supreme Court Rule 10.02.
III.
APPELLATE JURISDICTION OF THE COURT OF
APPEALS IN CRIMINAL CASES
A. Appeals by the Defendant to the Court of Appeals
§ 5.3 Generally
All direct appeals from final judgments in criminal cases are taken
to the Court of Appeals, except in those cases reviewable by law in the
district court and where direct appeal to the Supreme Court is required.
K.S.A. 22-3601(a).
The Court of Appeals has jurisdiction over a limited number of offgrid crimes. K.S.A. 22-3601(b)(4). Under K.S.A. 22-3601(b)(4)(A) through
(G), the off-grid crimes over which the Court of Appeals has jurisdiction
are: Aggravated human trafficking under K.S.A. 21-5426(c)(2)(B); rape
under K.S.A. 21-5503(b)(2)(B); aggravated criminal sodomy under K.S.A.
21-5504(c)(2)(B)(ii); aggravated indecent liberties with a child under
K.S.A. 21-5506(c)(2)(C)(ii); sexual exploitation of a child under K.S.A. 215510(b)(2)(B); promoting prostitution under K.S.A. 21-6420(b)(4); and an
attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-5301,
21-5302 or 21-5303, to commit any such listed off-grid felonies.
A defendant may appeal to the court having appellate jurisdiction
“from any judgment against the defendant….” K.S.A. 22-3602(a). There
are restrictions following a guilty plea. See K.S.A. 22-3602(a) and § 5.5,
infra. However, the Kansas Supreme Court has stated that “a criminal
defendant has a nearly unlimited right of review.” State v. Boyd, 268 Kan.
600, 605, 999 P.2d 265 (2000). Jurisdiction over an appeal of a motion to
correct an illegal sentence under K.S.A. 22-3504 lies with the court that
had jurisdiction to hear the original appeal. State v. Thomas, 239 Kan. 457,
Syl. ¶ 2, 720 P.2d 1059 (1986).
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PRACTICE NOTE: The notice of appeal must specify
the parties taking the appeal, designate the judgment
or part of the judgment appealed from, and name the
appellate court to which the appeal is taken. While the
appealing party must cause the notice of appeal to be
served on all other parties to the judgment, the party’s
failure to do so does not affect the validity of the appeal.
K.S.A. 60-2103(b). The Supreme Court has adopted
forms for a notice of appeal and docketing statement,
which can be accessed at the website for the Kansas
Judicial Council. See http://www.kansasjudicialcouncil.
org/legal_forms.shtml. The notice of appeal must
be in substantial compliance with the Judicial Council
form. See Supreme Court Rule 2.01 (direct appeals to
the Supreme Court); Supreme Court Rule 2.02 (direct
appeals to the Court of Appeals).
§ 5.4 Following Judgment
“For crimes committed on or after July 1, 1993, the defendant shall
have 14 days after the judgment of the district court to appeal.” K.S.A.
22-3608. The time within which to file a notice of appeal starts when
the sentence is pronounced from the bench. State v. Moses, 227 Kan.
400, Syl. ¶ 2, 607 P.2d 477 (1980). A criminal sentence is effective upon
pronouncement from the bench; it does not derive its effectiveness from
the filing of a journal entry. Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160
P.3d 471 (2007). The journal entry “is thus a record of the sentence
imposed; but the actual sentencing occurs when the defendant appears in
open court and the judge orally states the terms of the sentence.” State v.
Moses, 227 Kan. at 402. This is true even under the sentencing guidelines.
State v. Scaife, 286 Kan. 614, 626, 186 P.3d 755 (2008); State v. Soto, 23 Kan.
App. 2d 154, Syl. ¶ 1 , 928 P.2d 103 (1996).
Except as otherwise provided, a criminal defendant can appeal
from any final district court judgment against the defendant and “upon
appeal any decision of the district court or intermediate order made in
the progress of the case may be reviewed.” K.S.A. 22-3602(a). See also
State v. Mountjoy, 257 Kan. 163, Syl. ¶ 4, 891 P.2d 376 (1995). Criminal
defendants do not have the right to appeal intermediate pretrial orders.
This avoids piecemeal prosecution of the crimes charged and prevents
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unnecessary delay in the judicial process. A defendant has the right to
appeal such intermediate orders after a final judgment has been entered
against him. State v. Zimmerman, 233 Kan. 151, 155, 660 P.2d 960 (1983).
Judgment has been rendered when there has been a conviction and
sentence. State v. Donahue, 25 Kan. App. 2d 480, Syl. ¶ 2, 967 P.2d 335,
rev. denied 266 Kan. 1111 (1998) (an order disqualifying counsel from joint
representation of several criminal defendants is not an appealable order;
there has been no final judgment). To have a final judgment in a criminal
case, the defendant must be convicted and sentenced. A defendant’s
sentence is not final if the district court has ordered restitution but has not
yet set the amount. “Because restitution is part of a defendant’s sentence,
the amount of restitution must be determined and imposed in open court
in the defendant’s presence, unless the defendant voluntarily waives his or
her presence.... [A]t the completion of the restitution hearing, the district
court should notify the defendant of his or her appeal rights, including
the deadline for filing the appeal.” State v. Hannebohn, 48 Kan. App. 2d 921,
Syl. ¶¶ 3-4, 301 P.3d 340 (2013).
PRACTICE NOTE: The filing of a timely notice of
appeal is jurisdictional, and any appeal not taken within
the statutory deadline must be dismissed. A limited
exception to this general rule is recognized in those
cases where an indigent defendant either: (1) was not
informed of the right to appeal, including the appeal
filing deadline; (2) was not furnished an attorney to
perfect an appeal; or (3) was furnished an attorney for
that purpose who failed to perfect and complete an
appeal. State v. Patton, 287 Kan. 200, Syl. ¶ 3, 195 P.3d
753 (2008); State v. Ortiz, 230 Kan. 733, 735-36, 640
P.2d 1255 (1982). If any of these narrow exceptional
circumstances are met, a court must allow an appeal
out of time. State v. Phinney, 280 Kan. 394, 401-02, 122
P.3d 356 (2005). See also Kargus v. State, 284 Kan. 908,
169 P.3d 307 (2007) (if defendant establishes ineffective
assistance of counsel in failure to file petition for review
in direct appeal, appropriate remedy is to allow filing of
petition for review out of time).
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K.S.A. 22-3430 gives authority to the trial court to commit a
criminal defendant to a state mental institution in lieu of imprisonment.
K.S.A. 22-3430(c) states, “The defendant may appeal from any order of
commitment made pursuant to this section in the same manner and with
like effect as if sentence to a jail, or to the custody of the secretary of
corrections had been imposed.” A defendant can appeal from an order
of commitment under K.S.A. 22-3430; however, a trial court’s refusal to
commit a defendant to a state mental institution in lieu of imprisonment
is not reviewable on appeal. State v. Lawson, 25 Kan. App. 2d 138, 144, 959
P.2d 923 (1998).
There is no provision for an interlocutory appeal by a defendant in
a criminal case. See Donahue, 25 Kan. App. 2d at 483. There is also no
statutory procedure for a defendant to appeal a question of law after
an acquittal of the crime charged. Mountjoy, 257 Kan. 163, Syl. ¶ 4.
The prosecution can, however, appeal on a question reserved following
judgment. State v. Hermes, 229 Kan. 531, Syl. ¶ 4, 625 P.2d 1137 (1981).
See § 5.9, infra.
PRACTICE NOTE: Although a defendant cannot
pursue an interlocutory appeal, in very limited
circumstances defendants may be able to bring claims
to an appellate court by way of original habeas action
under K.S.A. 22-2710, which is part of the Uniform
Criminal Extradition Act. In re Mason, 245 Kan. 111,
Syl. ¶ 1, 775 P.2d 179 (1989) (defendant allowed to bring
double jeopardy claim in original action with appellate
court because the double jeopardy clause protects against
going through second trial, not just being convicted at a
second trial). See also Chapter 4, supra.
Defendants are allowed to appeal from judgments on post-conviction/
post-appeal motions. See, e.g., State v. Guzman, 279 Kan. 812, 112 P.3d 120
(2005) (appeal from denial of pro se motion for jail time credit).
§ 5.5 Following Pleas
Despite the general rule that a criminal defendant can appeal following
judgment, no appeal can be taken from a judgment of conviction upon a
plea of guilty or nolo contendere, “except that jurisdictional or other grounds
going to the legality of the proceedings may be raised by the defendant as
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provided in K.S.A. 60-1507 and amendments thereto.” K.S.A. 22-3602(a).
See State v. Edgar, 281 Kan. 30, 39, 127 P.3d 986 (2006) (discussing a
defendant’s waiver of defects or irregularities in the proceedings upon
entry of a voluntary plea of guilty).
Following a plea, a criminal defendant can, however, raise a number
of issues on appeal unrelated to his conviction. For instance, following
a plea, a criminal defendant can appeal from the court’s restitution order.
See State v. Hunziker, 274 Kan. 655, 56 P.3d 202 (2002); State v. Beechum,
251 Kan. 194, 202, 833 P.2d 988 (1992). See also State v. Scott, 265 Kan.
1, 961 P.2d 667 (1998) (appeal from an order requiring registration as a
sexual offender). Denial of a motion to withdraw a guilty plea pursuant
to K.S.A. 22-3210(d) may also be appealed. State v. Solomon, 257 Kan. 212,
Syl. ¶ 1, 891 P.2d 407 (1995); State v. McDaniel, 255 Kan. 756, Syl. ¶ 1, 877
P.2d 961 (1994).
The prohibition against appeals taken by a defendant from a judgment
of conviction based upon a plea does not apply to pleas accepted by a
district magistrate judge or a municipal court judge. The proceedings in
magistrate or municipal court have no bearing on the case as it comes
before the district court de novo. State v. Gillen, 39 Kan. App. 2d 461, 46769, 181 P.3d 564 (2008); K.S.A. 22-3609a (a defendant shall have the right
to appeal from any judgment of a district magistrate judge). But see State
v. Legero, 278 Kan. 109, Syl. ¶ 5, 91 P.3d 1216 (2004) (K.S.A. 2003 Supp.
22–3609a is construed and held not to authorize an appeal to the district
court by a defendant from an order of a district magistrate judge revoking
the defendant’s probation).
PRACTICE NOTE: “An agreement between parties
that the right to appeal is not waived cannot invest an
appellate court with jurisdiction when it is otherwise
lacking.” State v. Asher, 28 Kan. App. 2d 799, Syl. ¶ 1, 20
P.3d 1292 (2001). If the defendant would like to appeal
a district court’s adverse ruling on a motion as part of a
plea negotiation, he or she should proceed based upon
stipulated facts as opposed to entering a plea of guilty.
In a case decided on stipulated facts, the appellate court
has de novo review. State v. Downey, 27 Kan. App. 2d 350,
2 P.3d 191, rev. denied 269 Kan. 936 (2000). However,
the appellate court does not have de novo review from
a judgment of conviction after a plea of guilty or nolo
contendere. K.S.A. 22-3602(a).
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B. Appeals by the Prosecution to the Court of Appeals
§ 5.6 Generally
“The State’s right to appeal in a criminal case is strictly statutory,
and the appellate court has jurisdiction to entertain a State’s appeal only
if it is taken within time limitations and in the manner prescribed by the
applicable statutes.” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664
(1999). “The right to an appeal by the State in a criminal proceeding is
limited by statute.” State v. Bliss, 28 Kan. App. 2d 591, Syl. ¶ 1, 18 P.3d
979 (2001). “The prosecution’s ability to appeal a district court’s ruling is
substantially limited when compared to the defendant’s right of appeal.”
City of Liberal v. Witherspoon, 28 Kan. App. 2d 649, Syl. ¶ 1, 20 P.3d 727
(2001).
The prosecution can appeal to the Court of Appeals only in specific
situations under K.S.A. 22-3602(b). These are set forth in § 5.7 through
§ 5.11, infra. “Since there is no time limit delineated in K.S.A. 22–3602(b)
for the prosecution to appeal, the time specified under the rules of civil
procedure apply. Therefore, an appeal by the State must be taken within
30 days from the entry of final judgment as required by the rules of civil
procedure. K.S.A. 60-2103.” State v. Freeman, 236 Kan. 274, 277, 689 P.2d
885 (1984); K.S.A. 22-3606.
PRACTICE NOTE: In State v. McCarley, 287 Kan.
167, 176, 195 P.3d 230 (2008), State v. Vanwey, 262 Kan.
524, 526-27, 941 P.2d 365 (1997), and State v. Sisk, 266
Kan. 41, 966 P.2d 671 (1998), the court entertained
the State’s appeal from an order correcting an illegal
sentence under K.S.A. 22-3504. As a general rule, if
the practitioner believes there are multiple bases for
the appeal, all grounds should be stated. “Grounds
for jurisdiction not identified in a notice of appeal
may not be considered by the court.” State v. Woodling,
264 Kan. 684, Syl. ¶ 2, 957 P.2d 398 (1998). In State v.
Berreth, 294 Kan. 98, 115-16, 273 P.3d 752 (2012), the
court concluded the State was unable to expand on
the statutory basis for jurisdiction asserted in its notice
of appeal in the Court of Appeals. Since grounds for
jurisdiction not identified in a notice of appeal may not
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be considered by the appellate court, the State should
allege each applicable alternative means of bringing a
direct appeal set forth in K.S.A. 22-3602(b).
§ 5.7 From an Order Dismissing a Complaint, Information or
Indictment: K.S.A. 22-3602(b)(1)
“The State may appeal from an order dismissing a complaint pursuant
to K.S.A. 22-3602(b)(1).” State v. Hernandez, 40 Kan. App. 2d 525, 527,
193 P.3d 915 (2008). The right to take a direct appeal under this statutory
provision is generally the right to appeal from a pretrial order dismissing
a complaint, information or indictment. The right to take this appeal
belongs to the public prosecutor, not the complaining witness, State ex rel.
Rome v. Fountain, 234 Kan. 943, Syl ¶ 2, 678 P.2d 146 (1984), or an attorney
hired to assist the public prosecutor under K.S.A. 19-717. State v. Berg,
236 Kan. 562, Syl. ¶ 2, 694 P.2d 427 (1985).
“A judgment of acquittal entered by the trial court on a motion
filed by the defendant at the close of the State’s evidence is final and not
appealable by the State, except in those special circumstances when the
question reserved by the State is of statewide interest and is vital to a
correct and uniform administration of the criminal law.” State v. Wilson,
261 Kan. 924, Syl. ¶ 2, 933 P.2d 696 (1997). “While K.S.A. 22-3602(b)(1)
grants the State the right to appeal an order dismissing a complaint,
information, or indictment, the State does not have the right to appeal
a judgment of acquittal because appellate review of the decision after
acquittal would constitute double jeopardy.” State v. Roberts, 293 Kan. 29,
Syl. ¶ 3, 259 P.3d 691 (2011).
In determining whether a prosecution ended in an acquittal or
dismissal, the trial court’s characterization of its action does not control.
City of Wichita v. Bannon, 42 Kan. App. 2d 196, 199, 209 P.3d 207 (2009).
Jeopardy attaches only when a jury is impaneled and sworn or when the
judge begins to receive evidence in a bench trial. The State may appeal an
order of dismissal entered before jeopardy has attached. State v. Roberts,
293 Kan. 29, at Syl. ¶¶ 5-7. Where there has been an erroneous acquittal
of a criminal charge, a reinstatement of that charge violates the Fifth
Amendment prohibition against double jeopardy if such reinstatement
results in further proceedings of some sort devoted to the resolution of
factual issues going to the elements of the offense charged. Evans v.
Michigan, 568 U.S. ___, 133 S. Ct. 1069, 185 L. Ed. 2d 124 (2013); Lowe v.
State, 242 Kan. 64, 744 P.2d 856 (1987).
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There is no requirement that the prosecutor refile a dismissed
complaint before appealing from an order dismissing a complaint, State
v. Zimmerman & Schmidt, 233 Kan. 151, Syl. ¶ 1, 660 P.2d 960 (1983);
however, all counts in a complaint, information, or indictment must
be dismissed or otherwise disposed of before an appeal from an order
dismissing a complaint, information, or indictment is properly before the
appellate court. State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983).
“There is no statutory authority for the State to appeal from the dismissal
in a criminal case of some of the counts of a multiple-count complaint,
information, or indictment while the case remains pending before the
district court on all or a portion of the remaining counts which have not
been dismissed and which have not been finally resolved.” State v. Nelson,
263 Kan. 115, Syl. ¶ 3, 946 P.2d 1355 (1997). But see McPherson v. State, 38
Kan. App. 2d 276, 287-88, 163 P.3d 1257 (2007) (State’s remedies upon
dismissal of a complaint not limited only to appeal or the refiling of
charges. K.S.A. 22-3602[d] does not foreclose the State from exercising
other posttrial procedural motions).
For a discussion of appeals following the dismissal of a grand jury
indictment and the law of the case rule, see State v. Finical, 254 Kan. 529,
867 P.2d 322 (1994). The State can appeal the dismissal of an indictment
as insufficiently charging a crime. K.S.A. 22-3602(b)(1). See State v. Wright,
259 Kan. 117, 911 P.2d 166 (1996).
PRACTICE NOTE: A notice of appeal indicating the
State was appealing from “the decision of the District
Court” on a specified date was deemed sufficient to
cover the court’s dismissal of the case immediately
after suppressing evidence. See K.S.A. 22-3603 and
§ 5.11, infra, regarding interlocutory appeals following
suppression of evidence. “For all practical purposes,
the district court’s decision to dismiss and its decision to
grant defendants’ suppression motions were one and the
same. Thus the State’s citation of the statute authorizing
an appeal from the dismissals was sufficient to preserve
its right to challenge the basis of the dismissal decisions,
i.e., the suppression of the evidence….” State v. Huff,
278 Kan. 214, 218-19, 92 P.3d 604 (2004).
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§ 5.8 From an Order Arresting Judgment: K.S.A. 22-3602(b)(2)
An order arresting judgment can be entered if a complaint,
information, or indictment does not charge a crime or if the court was
without jurisdiction of the crime charged. State v. Unruh, 259 Kan. 822,
Syl. ¶ 2, 915 P.2d 744 (1996); K.S.A. 22-3502. See also State v. Sims, 254
Kan. 1, Syl. ¶ 3, 862 P.2d 359 (1993). K.S.A. 22-3503 allows the district
court to arrest judgment on its own motion. If a complaint, information
or indictment did charge a crime and the court had jurisdiction over the
crime charged, there can be no order arresting judgment from which
the State can appeal regardless of the State’s characterization of the trial
court’s order. See Unruh, 259 Kan. at 824-25.
§ 5.9 Upon a Question Reserved by the Prosecution: K.S.A. 223602(b)(3)
“Although the State is not permitted to appeal from a judgment of
acquittal, the State may appeal on a question reserved.” State v. Walker, 260
Kan. 803, 806, 926 P.2d 218 (1996). An appeal by the State on a question
reserved must be taken after judgment has been entered, State v. Hermes,
229 Kan. 531, Syl. ¶ 4, 625 P.2d 1137 (1981), and such an appeal will
not be entertained merely to demonstrate whether error was committed
by the trial court. State v. Tremble, 279 Kan. 391, Syl. ¶ 1, 109 P.3d 1188
(2005); State v. Craig, 254 Kan. 575, 576, 867 P.2d 1013 (1994). An appeal
on a question reserved presupposes that the underlying criminal case has
concluded but that an answer to a question of statewide importance is
necessary for disposition of future cases. Accordingly, an appellate court’s
answer to a question reserved has no effect on the criminal defendant in
the underlying case. State v. Jaben, 294 Kan. 607, Syl. ¶ 2, 277 P.3d 417
(2012); State v. Berreth, 294 Kan. 98, 121-23, 273 P.3d 752 (2012). See also
State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008). The decision on
an appeal from a question reserved has no effect on a criminal defendant
who has been acquitted. State v. Gustin, 212 Kan. 475, 479, 510 P.2d 1290
(1973).
The State may appeal “as a matter of right ... upon a question
reserved by the prosecution.” K.S.A. 22-3602(b)(3). The appellate courts
have added an additional requirement to the plain language of this statute.
“To be considered on appeal, questions reserved by the State in a criminal
prosecution must be of statewide interest important to the correct and
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uniform administration of criminal law and the interpretation of statutes.”
State v. Berreth, 294 Kan. 98, Syl. ¶ 11. “The purpose of permitting the State
to appeal a question reserved is to allow the prosecution to obtain review
of an adverse legal ruling on an issue of statewide interest important to the
correct and uniform administration of the criminal law which otherwise
would not be subject to appellate review.” State v. Mountjoy, 257 Kan. 163,
Syl. ¶ 3, 891 P.2d 376 (1995). “Appellate courts will not accept appeal
of questions reserved when their resolution will not provide helpful
precedent. So if a question reserved is no longer of statewide importance
because the court has already addressed it in a prior case, an appeal on
the question should be dismissed.” State v. Berreth, 294 Kan. 98, Syl. ¶ 12.
There is no statutory authority for answering a defendant’s inquiries in a
State’s appeal upon a question reserved. Mountjoy, 257 Kan. 163, Syl. ¶ 5.
New issues and previously uninterpreted statutes are appropriate
subjects for appeal on questions reserved. See State v. Adee, 241 Kan.
825, 827, 740 P.2d 611 (1987). The appellate courts “uniformly [decline]
to entertain questions reserved in which the resolution of the question
would not provide helpful precedent.” Tremble, 279 Kan. 391, Syl. ¶ 1.
For instance, an order granting probation to a particular defendant is not
a question of statewide importance that can be appealed as a question
reserved. See State v. Ruff, 252 Kan. 625, 630, 847 P.2d 1258 (1993). The
sufficiency of the State’s evidence in a particular case is not an issue of
statewide importance. State v. Wilson, 261 Kan. 924, 933 P.2d 696 (1997).
The question of whether a plea agreement may be deemed ambiguous if
it is silent as to some issue, condition, or fact known to both sides is not
an issue of statewide importance because it is fact specific and of limited
precedential value. State v. Woodling, 264 Kan. 684, 688, 957 P.2d 398
(1998).
Appellate courts have found a variety of areas of the criminal law
to be a matter of statewide importance. See, e.g., State v. Jaben, 294 Kan.
607, 277 P.3d 417 (2012) (interpreting the prospective application of
amendments to the expungement statute); State v. Stallings, 284 Kan. 741,
742, 163 P.3d 1232 (2007) (whether a defendant has a right to allocution
before the jury during the death penalty phase of a capital murder trial);
State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001) (decision suppressing
evidence of a blood sample taken from the defendant prior to his arrest);
State v. Golston, 269 Kan. 345, 346, 7 P.3d 1132 (2000) (whether a trial
judge can release a prisoner without processing the release through the
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Department of Corrections); State v. Chastain, 265 Kan. 16, 22, 960 P.2d
756 (1998) (whether the trial court erred in refusing to admit evidence
of horizontal gaze nystagmus testing); State v. Roderick, 259 Kan. 107,
109, 911 P.2d 159 (1996) (interpretation of Kansas sentencing guidelines
provisions); City of Overland Park v. Cunningham, 253 Kan. 765, 766, 861 P.2d
1316 (1993) (whether an objection for “lack of foundation” is sufficient
when a request for a more specific objection is made); State v. Toler, 41
Kan. App. 2d 896, 899-900, 206 P.3d 548 (2009) (whether a person may
be found guilty of criminal possession of a firearm on school property
even when school is not in session given the number of school districts in
Kansas and the legislature’s intent to regulate the presence of firearms on
school property); State v. Moffit, 38 Kan. App. 2d 414, 166 P.3d 435 (2007)
(question of whether statute, which provides that any person who engages
in the unlawful manufacturing or attempting to unlawfully manufacture
any controlled substance “shall not be subject to statutory provisions for
suspended sentence, community work service, or probation,” prohibits
a sentencing court from granting probation to a defendant convicted of
conspiracy to unlawfully manufacture methamphetamine); State v. Johnson,
32 Kan. App. 2d 619, 86 P.3d 551 (2004) (whether it was misconduct
for any attorney, prosecutor or defense, to call witnesses “liars” when
such statements were not supported by evidence); and State v. Kralik, 32
Kan. App. 2d 182, 80 P.3d 1175 (2003) (construing ambiguous language
relating to prior DUI convictions in a journal entry of judgment).
All that is necessary for the State to reserve a question for appeal is to
make a proper objection or exception at the time a judgment is entered by
the district court, laying the same foundation for appeal that a defendant
is required to lay. State v. Tremble, 279 Kan. 391, 393–94, 109 P.3d 1188
(2005). “In so doing, the State must lodge proper and timely objections,
advise the trial court of the basis for the objections, and properly perfect
the appeal.” State v. G.W.A., 258 Kan. 703, Syl. ¶ 2, 906 P.2d 657 (1995).
See also State v. Hurla, 274 Kan. 725, 727-28, 56 P.3d 252 (2002); City of
Overland Park v. Cunningham, 253 Kan. 765, Syl. ¶ 2, 861 P.2d 1316 (1993).
No more is required from the State than from a defendant to preserve an
issue for appellate review. State v. Pottoroff, 32 Kan. App. 2d 1161, Syl. ¶ 2,
96 P.3d 280 (2004). “Although the better practice to preserve a question
for appeal is for the State to object or take exception after the court’s ruling,
an argument presented by the State prior to the ruling may be adequate
to preserve the question for jurisdictional purposes.” Pottoroff, 32 Kan.
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App. 2d 1161, Syl. ¶ 3. In the absence of any timely, proper objection
or exception, the issue is not properly before the appellate court. See
also State v. Berreth, 294 Kan. 98, 113-15, 273 P.3d 752 (2012) (discussion
of sufficiency of State’s notice of appeal to trigger appellate jurisdiction
over a question reserved); State v. Huff, 278 Kan. 214, 217-19, 92 P.3d 604
(2004) (same).
§ 5.10 Upon an Order Granting a New Trial in Any Case
Involving an Off-Grid Crime: K.S.A. 22-3602(b)(4)
The prosecution may appeal an order granting a new trial in any
case involving an off-grid crime. K.S.A. 22-3602(b)(4). This statute also
permits an appeal from an order granting a new trial for class A or B
felonies prior to July 1993.
§ 5.11 Interlocutory Appeals: K.S.A. 22-3603
When a judge of the district court makes a pre-trial “order quashing
a warrant or a search warrant, suppressing evidence or suppressing a
confession or admission an appeal may be taken by the prosecution ... if
notice of appeal is filed within 14 days after entry of the order.” K.S.A.
22-3603. All interlocutory appeals in criminal cases must be taken to
the Court of Appeals. K.S.A. 22-3601(a). The only interlocutory appeals
that are permitted in criminal cases are set out in K.S.A. 22-3603. Under
this statute, the prosecution can appeal from a pretrial order quashing a
warrant, quashing a search warrant, suppressing evidence, or suppressing
a confession or admission. See State v. Unruh, 263 Kan. 185, Syl. ¶ 5,
946 P.2d 1369 (1997). A criminal defendant has no right to take an
interlocutory appeal. See State v. Donahue, 25 Kan. App. 2d 480, 483, 967
P.2d 335 (1998).
A threshold requirement of an appeal from a pretrial order suppressing
evidence is that the order appealed from substantially impairs the State’s
ability to prosecute the case. State v. Newman, 235 Kan. 29, 35, 680 P.2d
257 (1984); State v. Nuessen, 23 Kan. App. 2d 456, Syl. ¶ 1, 933 P.2d 155
(1997). Suppression rulings which seriously impede but do not technically
foreclose prosecution can be appealed under K.S.A. 22-3603. State v. Bliss,
28 Kan. App. 2d 591, 594, 18 P.3d 979 (2001). The prosecutor should
be prepared to make a showing, on order of the appellate court, that the
district court’s pretrial order appealed from substantially impairs the State’s
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ability to prosecute the case or when appellate jurisdiction is challenged by
the defendant-appellee. State v. Sales, 290 Kan. 130, Syl. ¶ 5, 224 P.3d 546
(2010); Newman, 235 Kan. at 35. There is, however, no similar threshold
requirement in an appeal from a pretrial order suppressing a confession
or admission. State v. Mooney, 10 Kan. App. 2d 477, 479, 702 P.2d 328, rev.
denied 38 Kan. 879 (1985). In dicta, the Mooney court also indicated there
was no such threshold requirement in an appeal from a pretrial order
quashing a warrant or search warrant. Mooney, 10 Kan. App. 2d at 479.
There is no mechanism for the State to appeal from an order denying
revocation of a diversion agreement or probation. State v. McDaniels, 237
Kan. 767, 772, 703 P.2d 789 (1985). This does not mean, however, that
the State can never question an order denying revocation of a diversion
agreement. In McDaniels, the court stated, “Until the legislature chooses
to create a right in the State to appeal from a pretrial order denying the
State’s request to revoke diversion, the State may not appeal prior to the
completion of the diversion and the dismissal of the case by the district
court.” McDaniels, 237 Kan. at 772. The State may, however, “appeal after
the dismissal, and if the appeal is sustained, the defendant may be tried.”
McDaniels, 237 Kan. at 771. Likewise, a defendant may not appeal from
the court’s decision to terminate pretrial diversion and reinstate criminal
prosecution. State v. Cameron, 32 Kan. App. 2d 187, 81 P.3d 442 (2003).
Further proceedings in the trial court will be stayed pending
determination of the interlocutory appeal. K.S.A. 22-3603. The time
during which an interlocutory appeal is pending “shall not be counted for
the purpose of determining whether a defendant is entitled to discharge”
under the speedy trial statute, K.S.A. 22-3402. K.S.A. 22-3604(2). The
general rule is that a defendant shall not be held in jail nor subject to an
appearance bond during the pendency of an appeal by the prosecution.
K.S.A. 22-3604(1). The exception to this general rule is that a defendant
charged with an off-grid felony, a nondrug severity level 1 through 5 felony
or a drug severity level 1 through 4 felony crime “shall not be released
from jail or the conditions of such person’s appearance bond during the
pendency of an appeal by the prosecution.” K.S.A. 22-3604(3). This rule
also applies to a defendant charged with a class A, B or C felony prior to
the enactment of the Kansas Sentencing Guidelines Act in 1993.
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PRACTICE NOTE: Supreme Court Rule 4.02 governs
the docketing and appellate procedure of interlocutory
appeals, which are typically expedited. When an appeal
is expedited, the appellant’s brief will be due 30 days
following the completion of all necessary transcripts.
The appellee’s brief will be due within 30 days of the
filing of the appellant’s brief. In the absence of a showing
of exceptional circumstances, no further extensions of
time for filing briefs will be granted.
C. Sentencing Guidelines Appeals
§ 5.12 Appeals Under the Kansas Sentencing Guidelines Act
On July 1, 1993, the Kansas Sentencing Guidelines Act went into
effect for crimes committed on or after that date. The appeal rights of
both the prosecution and defendant from sentences imposed pursuant
to the Act are set by statute. See K.S.A. 22-3602(f); K.S.A. 21-6820
(formerly K.S.A. 21-4721); State v. Ware, 262 Kan. 180, Syl. ¶ 1, 938 P.2d
197 (1997).
For any felony committed on or after July 1, 1993, there is generally
no appellate review of a sentence within the presumptive sentence range
for the crime. K.S.A. 21-6820(c) (formerly K.S.A. 21-4721[c]). But see
State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004) (defendant was entitled
to remand for resentencing under McAdam rule; where she had been
convicted under statutes containing identical elements but providing
different penalties, defendant could only be sentenced to lesser penalty);
State v. Hodgden, 29 Kan. App. 2d 36, 38, 25 P.3d 138, rev. denied 271 Kan.
1040 (2001) (appellate court may review claim that sentencing court erred
in either including or excluding a prior conviction or juvenile adjudication
in a defendant’s criminal history); and State v. Cisneros, 42 Kan. App. 2d
376, 212 P.3d 246 (2009) (statute limiting appellate review of presumptive
sentence did not serve as jurisdictional bar to defendant’s appeal from
order revoking defendant’s probation and imposing original presumptive
term of imprisonment based on incorrect finding that trial court lacked
authority to impose a sentence shorter than the original sentence).
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A sentence of imprisonment or probation in a border box case is
a presumptive sentence for purposes of appeal, so it is not subject to
appellate review. See State v. Schad, 41 Kan. App. 2d 805, Syl. ¶ 12, 206
P.3d 22 (2009); State v. Clark, 21 Kan. App. 2d 697, 700, 907 P.2d 898
(1995), rev. denied 259 Kan. 928 (1996).
“The filing and denial of a motion requesting departure by either the
defendant or the State has no effect on the rule that a sentence within the
presumptive sentence grid block is not subject to review on appeal.” State
v. Graham, 27 Kan. App. 2d 603, Syl. ¶ 6, 6 P.3d 928 (2000).
An appellate court’s jurisdiction to consider an appeal challenging a
sentence imposed pursuant to the Kansas Sentencing Guidelines Act is
limited to the grounds set out in K.S.A. 21-4721(a) and (e) (currently K.S.A.
21-6820 [a] and [e]), and illegal sentences. State v. McCallum, 21 Kan. App.
2d 40, Syl. ¶ 4, 895 P.2d 1258 (1995). K.S.A. 21-6820(a) (formerly K.S.A.
21-4721[a]) states that a departure sentence is subject to appeal by the
defendant or the prosecution. Accord State v. Sampsel, 268 Kan. 264, Syl. ¶
3, 497 P.2d 664 (2000). “Only if the sentence imposed is inconsistent with
the duration and disposition of the appropriate grid block can there be a
departure.” State v. McCallum, 21 Kan. App. 2d at 7. See also K.S.A. 216803(f) (defining “departure”); K.S.A. 21-6803(g) (defining “dispositional
departure”); and K.S.A. 21-6803(i) (defining “durational departure”). By
statute, a guideline sentence may be deemed not to be a departure and
thus not subject to appeal. See, e.g., K.S.A. 21-6604b(f).
“In an appeal from a departure sentence, an appellate court must
determine pursuant to [K.S.A. 21-6820(d)] whether the sentencing court’s
findings of fact and reasons justifying departure (1) are supported by
substantial competent evidence and (2) constitute substantial and
compelling reasons for departure as a matter of law. The applicable standard
of review is keyed to the language of the statute: [K.S.A. 21-6820(d)(1)]
requires an evidentiary test −are the facts stated by the sentencing court in
justification of departure supported by the record? [K.S.A. 21-6820(d)(2)]
requires a law test −are the reasons stated on the record for departure
adequate to justify a sentence outside the presumptive sentence?” State v.
Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995).
K.S.A. 21-4721(e)(1) (now K.S.A. 21-6820[e][1]) states, “In any appeal,
the appellate court may review a claim that: a sentence that departs from
the presumptive sentence resulted from partiality, prejudice, oppression
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or corrupt motive.” This subsection seemingly gives the appellate courts
jurisdiction to consider another issue in departure sentence appeals. State
v. Favela, 259 Kan. 215, 239, 911 P.2d 792 (1996).
By inference, K.S.A. 21-4719(b)(1) (now K.S.A. 21-6818[b][1]) is
interpreted to give appellate courts the authority to review the extent of a
downward durational departure. Scope of review is limited to an abuse of
discretion standard. Favela, 259 Kan. at 242. The same standard applies
to appellate review of the extent of an upward departure sentence. State v.
Tiffany, 267 Kan. 495, 506-07, 986 P.2d 1064 (1999). But see State v. Martin,
285 Kan. 735, 746-47, 175 P.3d 832 (2008) (issue of whether departure
factors relied on by sentencing court are substantial and compelling is
reviewed de novo).
K.S.A. 21-6820(e)(2) and (3) (formerly K.S.A. 21-4721[e][2] and
[3]) allow for appellate review of whether the sentencing court erred in
either including or excluding recognition of a prior criminal conviction or
juvenile adjudication for criminal history scoring purposes and whether
the sentencing court erred in ranking the crime severity level of the
current crime or in determining the appropriate classification of a prior
conviction or juvenile adjudication for criminal history purposes. In
State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004), the Court held
that it could consider a claim under K.S.A. 21-4721(e)(3) even though
the sentence imposed resulted from a plea agreement. See also State
v. Vandervort, 276 Kan. 164, 72 P.3d 925 (2003) (appellate court could
consider criminal history issue under K.S.A. 21-4721(e)(2) even though
not raised at trial court). Apparently, both the State and the defendant can
appeal these issues. See State v. Hodgden, 29 Kan. App. 2d 36, 25 P.3d 138
(2001) (State appealed district court’s amendment of defendant’s criminal
history and court entertained appeal even though defendant had been
given presumptive sentence).
It has been held that when a criminal defendant challenges a
presumptive sentence on the ground that the running of multiple sentences
consecutively constitutes an abuse of discretion, no ground for appeal
authorized by K.S.A. 21-4721(a) or (e) (now K.S.A. 21-6820[a] and [e]) is
asserted; therefore, there is no appellate jurisdiction to consider the issue.
State v. Ware, 262 Kan. 180, Syl. ¶ 4, 938 P.2d 197 (1997); State v. McCallum,
21 Kan. App. 2d 40, Syl. ¶ 7, 895 P.2d 1258 (1995). See also State v. Flores,
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268 Kan. 657, Syl. ¶ 2, 999 P.2d 919 (2000) (a consecutive sentence is not
a departure sentence).
Regardless of whether a notice of appeal has been filed, the sentencing
court retains jurisdiction for 90 days after the entry of judgment to modify
its judgment and sentence to correct any arithmetic or clerical errors.
K.S.A. 21-6820(i).
IV. APPELLATE JURISDICTION IN JUVENILE OFFENDER
CASES
§ 5.13 Appeals by the Juvenile Offender
Appeals by a juvenile offender are taken to the appellate court having
jurisdiction over the criminal charge. See K.S.A. 38-2380; State v. Kunellis,
276 Kan. 461, 78 P.3d 776 (2003) (convicted, in part, of felony murder;
appeal including prosecution as an adult to Supreme Court); In re B.M.B.,
264 Kan. 417, 955 P.2d 1302 (1998) (appeal from adjudication of rape; case
transferred from Court of Appeals to Supreme Court); State v. Hartpence,
30 Kan. App. 2d 486, 42 P.3d 1197 (2002) (juvenile pleaded to aggravated
indecent liberties with a child; appeal including prosecution as adult to
Court of Appeals). Appeals from a district magistrate judge must be to a
district judge. K.S.A. 38-2382(a).
A juvenile offender can appeal from:
▪ An order of adjudication as a juvenile offender, sentencing,
or both. K.S.A. 38-2380(b);
▪ An order authorizing prosecution as an adult, if the juvenile
offender did not consent to the order. K.S.A. 38-2380(a)(1).
The juvenile raises the issue on appeal from his or her
criminal conviction. A juvenile can also appeal an order
authorizing prosecution as an adult following a plea of
guilty or nolo contendere if the juvenile did not consent
to the order. K.S.A. 38-2380(a)(1). See State v. Ransom, 268
Kan. 653, Syl. ¶ 1, 999 P.2d 272 (2000) (interpreting prior,
similarly worded statute); and
▪ A departure sentence, although the sentence review is
limited. See K.S.A. 38-2380(b)(3). See also § 5.15, infra.
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In any appeal, an appellate court may review a claim that:
▪ An imposed departure sentence resulted from partiality,
prejudice, oppression, or corrupt motive. K.S.A. 382380(b)(4)(A).
▪ The sentencing court erred in either including or excluding
recognition of prior convictions or adjudications. K.S.A.
38-2380(b)(4)(B).
▪ The sentencing court erred in ranking the crime severity level
or in scoring criminal history. K.S.A. 38-2380(b)(4)(C).
PRACTICE NOTE: Appeals under the Revised
Kansas Juvenile Justice Code “shall have priority over
other cases except those having statutory priority.”
K.S.A. 38-2380(c). This means that such appeals will be
expedited. When an appeal is expedited, the appellant’s
brief will be due 30 days following the completion of
all necessary transcripts. The appellee’s brief will be due
within 30 days of the filing of the appellant’s brief. In
the absence of a showing of exceptional circumstances,
no further extensions of time for filing briefs will be
granted.
§ 5.14 Appeals by the Prosecution
Appeals by the prosecution are taken to the Court of Appeals.
See K.S.A. 22-3602(b) (appeals by prosecution from order dismissing
complaint, information or indictment and on question reserved go to the
Court of Appeals); In re J.D.J., 266 Kan. 211, 967 P.2d 751 (1998) (appeal
from order denying prosecution as adult filed with Court of Appeals and
transferred to Supreme Court under K.S.A. 20-3018[c]).
The Revised Kansas Juvenile Justice Code, K.S.A. 38–2301 et seq.,
only permits a juvenile to appeal an order authorizing prosecution of the
juvenile as an adult, an order of adjudication, or a sentencing order. In re
D.M.-T., 292 Kan. 31, Syl. ¶ 4, 249 P.3d 418 (2011). Under the Revised
Kansas Juvenile Justice Code, the prosecution can appeal:
▪ From an order dismissing proceedings when jeopardy has
not attached. K.S.A. 38-2381(a)(1);
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▪ From an order denying authorization to prosecute a juvenile
as an adult. K.S.A. 38-2381(a)(2);
▪ From an order quashing a warrant or search warrant. K.S.A.
38-2381(a)(3);
▪ From an order suppressing evidence or suppressing a
confession or admission. K.S.A. 38-2381(a)(4); and
▪ Upon a question reserved by the prosecution. K.S.A. 382381(a)(5).
An appeal upon a question reserved must be taken by the prosecution
within 14 days after the juvenile has been adjudged to be a juvenile offender.
All other appeals by the prosecution must be taken within 14 days of the
entry of the order being appealed. K.S.A. 38-2381(b).
The Revised Kansas Juvenile Justice Code does not permit an
appeal of the denial of a postappeal motion that collaterally attacked the
procedure employed to adjudicate the juvenile. In re D.M.-T., 292 Kan.
31, Syl. ¶ 4.
§ 5.15 Sentencing Guideline Appeals - Juvenile
In any appeal of a departure sentence, sentence review is limited
to whether the sentencing court’s findings of fact and reasons justifying
the departure are supported by the evidence in the record and constitute
“substantial and compelling reasons for departure.” K.S.A. 38-2380(b)(3)(A)
and (B). In addition, the appellate court may review a claim that the
departure sentence was the result of partiality, prejudice or corrupt motive
or that the sentencing court erred in including or excluding recognition of
prior adjudications in determining criminal history or erred in ranking the
crime severity level of the current crime or in determining the appropriate
classification of a prior adjudication. K.S.A. 38-2380(b)(4)(A) and (B).
An appellate court may not review a presumptive sentence or a
sentence resulting from an agreement between the State and the juvenile
that the sentencing court approves on the record. K.S.A. 38-2380(b)(2)(A)
and (B). But see State v. Duncan, 291 Kan. 467, 470–71, 243 P.3d 338
(2010) (criminal sentences resulting from plea agreement can be appealed
if illegal).
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PRACTICE NOTE: For a review of amendments to
the Kansas Juvenile Justice Code since 1984, see In re
L.M., 286 Kan. 460, 186 P.3d 164 (2008) (holding that
juveniles have a constitutional right to a jury trial under
the Sixth and Fourteenth Amendments because the Code
has become more akin to adult criminal prosecution.)
V.
APPELLATE JURISDICTION IN CIVIL CASES
§ 5.16Supreme Court
Direct appeal to the Supreme Court is required by law in the following
cases. The following list is not intended to be all inclusive; therefore, the
statutes should be consulted prior to taking an appeal.
▪ Appeals from final judgments of the district court in a civil
action in which a statute of this state or of the United States
has been held unconstitutional. K.S.A. 60-2101(b). This
statute specifically requires the order appealed from to be a
“final judgment.” See Flores Rentals v. Flores, 283 Kan. 476,
481, 153 P.3d 523 (2007); Plains Petroleum Co. v. First Nat.
Bank of Lamar, 274 Kan. 74, 81, 49 P.3d 432 (2002); State ex
rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, Syl. ¶ 1, 941
P.2d 371 (1997);
▪ Appeals from preliminary or final decisions finding a statute
unconstitutional under Article 6 of the Kansas Constitution
under K.S.A. 72-64b03. K.S.A. 60-2102(b)(1);
▪ Appeals from final decisions in any actions challenging the
constitutionality of or arising out of any provision of the
Kansas Expanded Lottery Act, or arising out of any lottery
gaming facility or racetrack gaming facility management
contract entered into under the Kansas Expanded Lottery
Act. K.S.A. 60-2102(b)(2);
▪ Appeals from final orders under the provisions of the
Eminent Domain Procedure Act. K.S.A. 26-504;
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▪ Appeals from any action of the Kansas Corporation
Commission under the Kansas Natural Gas Pricing Act.
K.S.A. 55-1410;
▪ Appeals arising from the Mental Health Technician’s
Licensure Act. K.S.A. 65-4211(b);
▪ Appeals from any action of the Kansas Corporation
Commission regarding site preparation or construction of
electric generation facilities. K.S.A. 66-1,164;
▪ Appeals permitted by statute in election contests. K.S.A. 251450;
▪ Appeals from orders granting or denying an original
organization license by the Kansas Racing Commission.
K.S.A. 74-8813(v);
▪ Appeals from orders granting or denying an original facility
owner license or facility manager license by the Kansas
Racing Commission. K.S.A. 74-8815(n);
▪ Appeals from orders in the district court by a person or
taxpayer aggrieved by airport zoning regulations. K.S.A. 3709;
▪ Appeals from judgment or order regarding petitions for
drainage. K.S.A. 24-702(f);
▪ Appeals from any action of the secretary of human
resources concerning the regulation of labor and industry
are subject to review and enforcement by the Supreme
Court in accordance with the Kansas Judicial Review Act.
K.S.A. 44-612.
§ 5.17 Court of Appeals
The Court of Appeals has jurisdiction to hear all appeals from district
courts in civil proceedings, except in those cases reviewable by law in the
district court and in those cases where direct appeal must be taken to the
Supreme Court as required by law. K.S.A. 60-2101(a). In addition, the
Court of Appeals has jurisdiction to hear appeals from administrative
decisions where a statute specifically authorizes appeals directly to the
Court of Appeals. K.S.A. 60-2101(a). See, e.g., K.S.A. 74-2426(c)(2)
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(appeals from final orders of the Court of Tax Appeals issued after June
30, 2008, in all cases other than no-fund warrant proceedings); K.S.A. 66118a(b) (orders of the Kansas Corporation Commission arising from a rate
hearing requested by a public utility or requested by the State Corporation
Commission when a public utility is a necessary party); K.S.A. 65-3008a
(permits issued by the Secretary of Health and Environment with regard
to air quality under the Kansas Air Quality Control Act, effective April 13,
2006); K.S.A. 44-556(a) (decisions of the Workers Compensation Board
entered on or after October 1, 1993).
Court of Appeals jurisdiction includes appeals from all K.S.A. 601507 proceedings, regardless of the severity of the underlying criminal
offense. State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986).
Appeals from actions of the district court in proceedings under the
Code of Civil Procedure for Limited Actions are taken to the Court of
Appeals. K.S.A. 61-3902(b).
VI. APPEALABLE ORDERS IN CIVIL CASES
§ 5.18 Final Orders
Under K.S.A. 60-2102(a)(4), a final decision in a civil proceeding can
be appealed. In an appeal from a final order, any act or ruling from the
beginning of the proceeding is reviewable. However, under K.S.A. 602103(h), an appellee must file a cross-appeal before he or she can present
adverse rulings for review. In re Tax Appeal of Fleet, 293 Kan. 768, 775,
272 P.3d 583 (2012); McCracken v. Kohl, 286 Kan. 1114, 1120, 191 P.3d
313 (2008); Chavez v. Markham, 19 Kan. App. 2d 702, Syl. ¶ 4, 875 P.2d
997 (1994), aff ’d 256 Kan. 859, 889 P.2d 122 (1995). See also Butler County
Water Dist. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003); In re T.A.,
30 Kan. App. 2d 30, 35, 38 P.3d 140 (2001).
A “final decision” is a decision “‘which finally decides and disposes
of the entire merits of the controversy, and reserves no further questions
or directions for the future or further action of the court.’” Kansas Medical
Mut. Ins. Co. v. Svaty, 291 Kan. 597, 610, 244 P.3d 642 (2010) (quoting Gulf
Ins. Co. v. Bovee, 217 Kan. 586, 587, 538 P.2d 724 [1975]). See also Flores
Rentals v. Flores, 283 Kan. 476, 481-82, 153 P.3d 523 (2007); Investcorp v.
Simpson Investment Co., 277 Kan. 445, Syl. ¶ 3, 85 P.3d 1140 (2003); Plains
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Petroleum Co. v. First National Bank of Lamar, 274 Kan. 74, 82, 49 P.3d 432
(2002); State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, Syl. ¶ 2,
941 P.2d 371 (1997); Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 1,
836 P.2d 1128 (1992). A final decision is one that determines all of the
issues in the case, not just part of the issues. Henderson v. Hassur, 1 Kan.
App. 2d 103, Syl. ¶ 2, 562 P.2d 108 (1977). See also Winters v. GNB Battery
Technologies, 23 Kan. App. 2d 92, 95, 927 P.2d 512 (1996).
In recent years, the Kansas Supreme Court has made clear that
the time to appeal begins to run immediately upon entry of judgment,
subject only to an exception where the appellant shows good cause for
not learning of the entry of judgment as set out in K.S.A. 60-2103(a). In
Board of Sedgwick County Comm’rs v. City of Park City, 293 Kan. 107, 120,
260 P.3d 387 (2011), the Kansas Supreme Court rejected any exception
to the Kansas rule requiring a notice of appeal to be filed within 30 days
of entry of judgment and expressly rejected the “unique circumstances”
doctrine that it previously applied where an appellant may have been led
to believe, erroneously, that the judgment so entered was not “final.”
The court expressly overruled its prior decisions applying the “unique
circumstances” exception to a jurisdictional deadline. 293 Kan. at 120.
See also Woods v. Unified Gov’t of Wyandotte County/KCK, 294 Kan. 292,
298, 275 P.3d 467 (2012).
In a number of cases, the appellate courts have examined whether various
rulings are final, appealable orders. The following list, which is certainly
not all inclusive, is for the purpose of direction only. The specifics of the
cases cited should be considered in determining their applicability to any
given situation:
▪ Collateral Order Doctrine
An order conclusively determining a disputed question that resolves an
important issue completely separate from the merits of the action and
that will be effectively unreviewable on appeal from a final judgment
is reviewable as a final decision under the collateral order doctrine. In
re T.S.W., 294 Kan. 423, 434-35, 276 P.3d 133 (2012); Skahan v. Powell,
8 Kan. App. 2d 204, 653 P.2d 1192 (1982). The Kansas Supreme
Court has emphasized “the limited availability of the collateral order
doctrine” in its decisions in recent years. See Kansas Medical Mut. Ins.
Co. v. Svaty, 291 Kan. 597, 616, 244 P.3d 642 (2010); Harsch v. Miller, 288
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Kan. 280, 200 P.3d 467 (2009); Flores Rentals v. Flores, 283 Kan. 476, 491,
153 P.3d 523 (2007). However, the court recently found application
of this doctrine proper in the unique factual circumstances presented
by an appeal by the Cherokee Nation from an order granting a petition
to deviate from the adoptive placement preferences set forth in the
Indian Child Welfare Act. In re T.S.W., 294 Kan. 423, 432-35, 276
P.3d 133 (2012). Nevertheless, the T.S.W. court emphasized it will
continue to apply this narrow doctrine sparingly to a small class of
collateral rulings. 294 Kan. at 434.
Two years earlier, in Svaty, the Kansas Supreme Court rejected
application of the doctrine to a collateral discovery ruling challenged
by a non-party. 291 Kan. at 616. In so holding, it found guidance in
the United States Supreme Court’s recent decision in Mohawk Industries,
Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 605, 175 L. Ed. 2d 458
(2009), where the Court rejected application of the doctrine to an order
concluding that the defendant had waived its attorney-client privilege
in another suit. The Svaty court noted that it generally has followed
the United States Supreme Court’s application of the collateral order
doctrine and held the doctrine did not apply even though the appellant
was not a party to the litigation below because it could seek a remedy
through mandamus. 291 Kan. at 616.
▪ Discovery and Other Pretrial Motions
The denial of a motion to intervene is a final, appealable order. State
ex rel. Stephan v. Kansas Dept. of Revenue, 253 Kan. 412, Syl. ¶ 1, 415,
856 P.2d 151 (1993); In re S.C., 32 Kan. App. 2d 514, 516, 85 P.3d 224
(2004); In re Marriage of Osborne, 21 Kan. App. 2d 374, Syl. ¶ 1, 901 P.2d
12 (1995).
As a general rule, discovery orders and sanctions for violations
concerning parties to the proceedings are not final, appealable orders.
Reed v. Hess, 239 Kan. 46, Syl. ¶ 3, 716 P.2d 555 (1986). This is true
even where the appellant was not a party to the proceedings below,
at least if the district court did not impose sanctions or a penalty on
appellant. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 616, 244
P.3d 642 (2010).
▪ Dispositive Motions
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An order denying a motion to dismiss is not a final, appealable order.
Donaldson v. State Highway Commission, 189 Kan. 483, Syl. ¶ 2, 485, 370
P.2d 83 (1962).
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The denial of a motion for summary judgment is not usually a final,
appealable decision. NEA-Topeka v. U.S.D. No. 501, 260 Kan. 838,
843, 925 P.2d 835 (1996). “Typically, a party can only appeal from a
summary judgment if the trial court has granted the opposing party’s
summary judgment motion.” NEA-Topeka, 260 Kan. at 843. An
order granting partial summary judgment to one of several defendants
is not a final, appealable order. Vallejo v. BNSF Railway Company, 46
Kan. App. 2d 498, 503-04, 263 P.3d 208, 213 (2011), rev. denied 296
Kan. (Feb. 25, 2013); Fredricks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252
(1976).
Trial court’s order granting a motion for voluntary dismissal without
prejudice is not a final order and, as such, an appellate court is without
jurisdiction to consider an appeal of that order. Bain v. Artzer, 271
Kan. 578, Syl. ¶ 2, 25 P.3d 136 (2001). See also Arnold v. Hewitt, 32
Kan. App. 2d 500, 85 P.3d 220 (2004) (partial summary judgment was
not an appealable “final decision” despite the plaintiff ’s voluntary
dismissal of the remaining claim).
▪ Judgment
An order vacating a default judgment is not a final, appealable order.
Bates & Son Construction Co. v. Berry, 217 Kan. 322, Syl. ¶ 1, 537 P.2d
189 (1975).
Generally, a declaratory judgment has the effect of a final order and
would normally be appealable. However, if the judgment does not
resolve all of the issues, there is no final, appealable decision. AMCO
Ins. Co. v. Beck, 258 Kan. 726, 728, 907 P.2d 137 (1995).
“A party is bound by a judgment entered on stipulation or consent and
may not appeal from a judgment in which he or she has acquiesced.”
In re Care and Treatment of Saathoff, 272 Kan. 219, 220, 32 P.3d 1173
(2001). An exception exists “when the party attacks the judgment
because of lack of consent or because the judgment deviates from
the stipulation or when the party’s attorney had no authority to settle
the case and did so without the agreement and consent of his client.”
Reimer v. Davis, 224 Kan. 225, Syl. ¶ 2, 580 P.2d 81 (1978).
▪ Post-trial Motions
An order granting a new trial is not a final, appealable order. Oertel
v. Phillips, 197 Kan. 113, 116-17, 415 P.2d 223 (1966). See also NEA2013
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Topeka v. U.S.D. No. 501, 260 Kan. at 843; Donnini v. Ouano, 15 Kan.
App. 2d 517, 526, 810 P.2d 1163 (1991). However, an exception to
this rule has been recognized when an order granting a new trial under
K.S.A. 60-259(a) or K.S.A. 60-260 is challenged on jurisdictional
grounds. Brown v. Fitzpatrick, 224 Kan. 636, Syl. ¶¶ 2, 3, 585 P.2d 987
(1978); Donnini, 15 Kan. App. 2d at 526.
▪ Post-Judgment
An order overruling a motion to quash an order of garnishment is not
a final, appealable order. Gulf Ins. Co. v. Bovee, 217 Kan. 586, Syl. ¶ 2,
538 P.2d 724 (1975). But see K.S.A. 61-3901(c), which authorizes an
appeal from any order overruling a motion to discharge a garnishment
under Chapter 61.
An order amending a sheriff ’s return of service on an execution after
satisfaction of a judgment in the action is a final, appealable order.
Transport Clearing House, Inc. v. Rostock, 202 Kan. 72, Syl. ¶ 2, 447 P.2d
1 (1968).
▪ Foreclosure/Redemption
“An order extending a statutory redemption period is a final, appealable
order.” Federal Savings & Loan Ins. Corp. v. Treaster, 13 Kan. App. 2d 305,
Syl. ¶ 1, 770 P.2d 481 (1989). See also L.P.P. Mortgage, Ltd. v. Hayse, 32
Kan. App. 2d 579, 87 P.3d 976 (2004).
A judgment of mortgage foreclosure is a final, appealable order if it
determines the rights of the parties, the amounts to be paid, and the
priority of the claims. Stauth v. Brown, 241 Kan. 1, Syl. ¶ 1, 734 P.2d
1063 (1987). See also L.P.P. Mortgage, Ltd., 32 Kan. App. 2d at 58384.
An order of sale issued in a mortgage foreclosure action is not a final,
appealable order; however, an order confirming a sheriff ’s sale is a
final, appealable order. See Valley State Bank v. Geiger, 12 Kan. App. 2d
485, 748 P.2d 905 (1988).
▪ Miscellaneous
In the absence of exceptional circumstances, remand orders are not
appealable. Holton Transport, Inc. v. Kansas Corporation Comm’n, 10 Kan.
App. 2d 12, Syl. ¶ 1, 690 P.2d 399 (1984), rev. denied 236 Kan. 875 (1985).
See also Neal v. Hy-Vee, Inc., 277 Kan. 1, 18, 81 P.3d 425 (2003); NEA-
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Topeka, 260 Kan. at 843; Williams v. General Elec. Co., 27 Kan. App. 2d
792, 793, 9 P.3d 1267 (1999). In Holton Transport, the court held that
absent exceptional circumstances, an order remanding a proceeding
to the Kansas Corporation Commission for further findings is not a
final, appealable order. Holton Transport, Inc., 10 Kan. App. 2d at 13.
The denial of a motion to arbitrate is a final, appealable order. If,
however, the court grants a motion to compel arbitration, the parties
must submit to arbitration and challenge the arbitrator’s decision before
there is a final, appealable order. NEA-Topeka, 260 Kan. at 842-43.
Once there is a decision on the merits of an action, there is a final
appealable order. Resolution of a motion or request for attorney fees
is unnecessary before there is a final, appealable order. Snodgrass v. State
Farm Mut. Auto. Ins. Co., 246 Kan. 371, Syl. ¶ 1, 789 P.2d 211 (1990).
Sanctions under K.S.A. 60-211 must be determined, however, before a
judgment is final for appeal purposes. Smith v. Russell, 274 Kan. 1076,
1081, 58 P.3d 698 (2002).
The denial of a motion to terminate parental rights is a final, appealable
order. In re T.D.W., 18 Kan. App. 2d 286, Syl. ¶¶ 5, 6, 850 P.2d 947
(1993). See also In re C.H.W., 26 Kan. App. 2d 413, 416, 988 P.2d 276
(1999).
Trial court’s order determining that ERISA did not preempt state
regulation of stop-loss insurance policy for self-funded employee
benefit plans but that state Insurance Commissioner lacked statutory
authority to regulate such insurance was a final order for purposes
of appeal even though subsequent legislative amendment would alter
ruling. American Trust Administrators, Inc. v. Sebelius, 267 Kan. 480, 981
P.2d 248 (1999).
PRACTICE NOTE: If there is any possibility that
a final judgment has been entered, counsel should
carefully comply with the 30-day deadline from entry
of judgment set forth in K.S.A. 60-2103(a) and the
deadlines that follow until it is clear that the time to
appeal has not commenced. That course is far safer
than the alternative that there will be no appellate
jurisdiction after the 30 days have expired. This is true
in part because Rule 2.03 provides that “advance filing
shall have the same effect for purposes of the appeal
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as if the notice of appeal had been filed simultaneously
with the actual entry of judgment, provided it complies
with K.S.A. 60-2103(b).” Rule 2.03 has been extended
to hold that “‘if a judgment is entered disposing
of all claims against one of multiple parties, and a
premature notice of appeal has been filed and has not
been dismissed, then a final judgment disposing of all
claims and all parties validates the premature notice of
appeal concerning the matters from which the appellant
appealed.’” Newcastle Homes v. Thye, 44 Kan. App. 2d 774,
797, 241 P.3d 988 (2010) (quoting Honeycutt v. City of
Wichita, 251 Kan. 451, 462, 836 P.2d 1128 [1992]). The
Court of Appeals held jurisdiction proper in Newcastle
Homes because the appellant had timely filed a second
notice of appeal within 30 days of the entry of final
judgment even though the district court had dismissed a
premature notice of appeal for failure to file a docketing
statement. 44 Kan. App. 2d at 797.
§ 5.19 Interlocutory Orders that are Appealable as a Matter of
Right
In some instances, an appeal from a decision of a district court may
be taken as a matter of right to the Court of Appeals even though the
order appealed from is interlocutory in nature; i.e., the entire controversy
is not ended as a result of the order. Those orders are set out in K.S.A.
60-2102(a)(1)-(3) and include:
▪ An order that discharges, vacates, or modifies a provisional
remedy;
▪ An order that grants, continues, modifies, refuses, or dissolves
an injunction, or an order that grants or refuses relief in the
form of mandamus, quo warranto, or habeas corpus; and
▪ An order that appoints a receiver or refuses to wind up a
receivership or to take steps to accomplish the purposes
thereof, such as directing sales or other disposal of property,
or an order involving the tax or revenue laws, the title to real
estate, the constitution of this state or the constitution, laws
or treaties of the United States.
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Other statutes may also authorize interlocutory appeals. See, e.g.,
K.S.A. 60-1305 (order refusing to appoint a receiver); and K.S.A. 5-418
(certain orders involving arbitration agreements).
Appeals under K.S.A. 60-2102(a) are taken to the Court of Appeals,
except where a direct appeal to the Supreme Court is required by law.
K.S.A. 60-2102(a)(4). Even though an order may seemingly fall within
one of these categories, the order itself must possess some semblance of
finality before the appeal will be allowed. For instance, in Valley State Bank
v. Geiger, 12 Kan. App. 2d 485, 748 P.2d 905 (1988), the court held that an
order of sale issued in a mortgage foreclosure action is not an appealable
order under K.S.A. 60-2102(a)(3) because it has no semblance of being a
final determination of the title to real estate. On the other hand, in Smith
v. Williams, 3 Kan. App. 2d 205, 592 P.2d 129 (1979), the court found
that an order establishing boundary lines and quieting title did have the
requisite semblance of finality even though other claims remained to be
resolved.
Similarly, “K.S.A. 60-2102 does not provide for an appeal when a
restraining order is granted.” U.S.D. No. 503 v. McKinney, 236 Kan. 224, 228,
689 P.2d 860 (1984). This is so because restraining orders are usually in
effect for only a brief period pending issuance of a temporary injunction.
236 Kan. at 228.
§ 5.20 Interlocutory Orders that are Appealable in the Court’s
Discretion
K.S.A. 60-2102(c) and Supreme Court Rule 4.01 provide that some
interlocutory orders may be appealed in the discretion of the Court of
Appeals. Under the statute and court rule, a district judge, issuing an
order that is not otherwise appealable, may make written findings that the
judge is of the opinion the order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that
an immediate appeal from the order may materially advance the ultimate
termination of the litigation. See Duarte v. DeBruce Grain, Inc., 276 Kan.
598, 599, 78 P.3d 428 (2003); Cypress Media Inc. v. City of Overland Park, 268
Kan. 407, 413-14, 997 P.2d 681 (2000).
If these findings are made, the Court of Appeals may, in its discretion,
permit an appeal to be taken from the order if proper application for
permission to take an appeal is made to the Court of Appeals, under Rule
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4.01. See Flores Rentals v. Flores, 283 Kan. 476, 481, 153 P.3d 523 (2007);
State ex rel. Board of Healing Arts v. Beyrle, 262 Kan. 507, 508-09, 941 P.2d
371 (1997). The application must be served within 14 days after filing of
the order. K.S.A. 60-2102(c); Rule 4.01.
PRACTICE NOTE: Application to take a civil
interlocutory appeal must be made to the Court of
Appeals even though some, or all, of the issues lie
within Supreme Court jurisdiction, e.g., a statute has been
declared unconstitutional. If permission to appeal is
granted, the case will later be transferred to the Supreme
Court.
The required findings are the first step. The district judge must make
the findings required by the statute in the order from which the appeal is
to be taken. Anderson v. Beech Aircraft Corp., 237 Kan. 336, 337-38, 699 P.2d
1023 (1985). If, however, the order does not contain the findings required
by the statute, the order can be amended to include the requisite findings,
provided a motion to amend is filed and served within 14 days of the
filing of the original order. In that case, the application for permission to
take an appeal may be served within 14 days after filing of the amended
order. Rule 4.01.
Rule 4.01 sets out what an application for permission to take an
interlocutory appeal must contain. Further, the rule provides that an
adverse party may respond to the application within the time limit set out
in the rule. Finally, the rule sets out what procedure must be followed
if permission to appeal is granted, e.g., when the appeal is deemed
docketed.
PRACTICE NOTE: Few applications to take civil
interlocutory appeals are granted. Counsel should
carefully consider whether their case meets the three
statutory requirements: controlling question of law,
substantial ground for difference of opinion, and
material advancement of termination of litigation. If
so, the application should be thorough with particular
attention paid to the “substantial ground for difference
of opinion.” Citation to authority is critical, but foreign
jurisdictions cannot be cited to establish a difference of
opinion if the question of law has been answered in
Kansas.
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An order of a district court granting or denying class action
certification under K.S.A. 60-223 may be appealed, in the discretion of
the Court of Appeals, if application is made to the court within 14 days
after entry of the order. K.S.A. 60-223(f); Rule 4.01A. The proceedings
in the district court are not stayed by an appeal unless requested and so
ordered by the district court or the Court of Appeals. K.S.A. 60-223(f).
§ 5.21 K.S.A. 60-254(b) – Entry of Final Judgment as to One or
More but Fewer than All Claims or Parties
When there is more than one claim for relief in an action or when
multiple parties are involved, the court can direct entry of final judgment
as to one or more but fewer than all of the claims or parties if the court
expressly determines there is no just reason for delay. K.S.A. 60-254(b). The
Supreme Court has endorsed the following test for determining whether
multiple claims exist: “‘“‘The ultimate determination of multiplicity of
claims must rest in every case on whether the underlying factual bases
for recovery state a number of different claims which could have been
separately enforced.’ [Citation omitted].”’” Gillespie v. Seymour, 263 Kan.
650, 654-55, 952 P.2d 1313 (1998). Different theories involving separate
facts do not necessarily involve distinct claims.
The 254(b) findings must affirmatively appear in the record, preferably
using the statutory language. City of Salina v. Star B., Inc., 241 Kan. 692,
Syl. ¶ 1, 739 P.2d 933 (1987). See also State ex rel. Board of Healing Arts v.
Beyrle, 262 Kan. 507, 510, 941 P.2d 371 (1977). The appellate court will
not assume the court made these findings simply because it used the word
“judgment.” Crockett v. Medicalodges, Inc., 247 Kan. 433, 434, 799 P.2d 1022
(1990). Mere reference to K.S.A. 60-254(b) is insufficient. Star B., Inc.,
241 Kan. at 694-96. Such deficiency cannot be corrected by an order
nunc pro tunc, Star B., Inc., 241 Kan. at 697, nor can an order be amended
to include the required findings after an unauthorized appeal has been
filed. Beyrle, 262 Kan. at 510.
When a trial court makes mere reference to K.S.A. 60-254(b), it has
not made “an express determination or an express direction, as required
in the statute; these omissions [are] not mere clerical errors which may
be corrected nunc pro tunc; and the proposed change would enlarge the
judgment as originally rendered and substantially change the effective
date of the judgment.” Star B., Inc., 241 Kan. at 697. When appropriate
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findings are made, there is a final appealable order, subject to appellate
review of the legal propriety of those findings. Patterson v. Missouri Valley
Steel, Inc., 229 Kan. 481, Syl. ¶ 1, 625 P.2d 483 (1981); Pioneer Operations Co.
v. Brandeberry, 14 Kan. App. 2d 289, Syl. ¶ 2, 789 P.2d 1182 (1990).
“‘“Even if a section 254(b) certificate is issued, it is not binding on
appeal; the trial court cannot thereby make an order final and therefore
appealable, if it is not in fact final.”’ [Citation omitted.]” Plains Petroleum
Co. v. First Nat. Bank of Lamar, 274 Kan. 74, 83, 49 P.3d 432 (2002),
quoting Gillespie, 263 Kan. at 655. A trial court cannot split a single
claim. See Henderson v. Hassur, 1 Kan. App. 2d 103, 562 P.2d 108 (1977).
However, “‘the discretionary judgment of the district court should be
given substantial deference, for that court is ‘the one most likely to be
familiar with the case and with any justifiable reasons for delay.’ [Citation
omitted.] The reviewing court should disturb the trial court’s assessment
of the equities only if it can say that the judge’s conclusion was clearly
unreasonable.’” St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc.,
245 Kan. 258, 276, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990),
quoting Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 10, 100 S. Ct.
1460, 64 L. Ed. 2d 1 (1980).
Once a 254(b) certificate has been issued and final judgment has
been entered, the time for appeal starts to run. Pioneer Operations Co., 14
Kan. App. 2d at 293. If a timely appeal is not taken, the judgment that is
the subject of the certificate cannot later be reviewed as an intermediate
ruling when appeal from the final judgment disposing of the entire case is
taken under K.S.A. 60-2102(a)(4). Pioneer Operations Co., 14 Kan. App. 2d
at 293. However, a party can attack the propriety of a 254(b) certificate in
an appeal that finally disposes of all claims, Pioneer Operations Co., 14 Kan.
App. 2d at 292, and if the appellate court finds the district court erred
in issuing the certificate, the rulings that were the subject of the 254(b)
certificate can be considered in an appeal from the final judgment. Pioneer
Operations Co., 14 Kan. App. 2d at 297.
2013
Where a district court fails to make the proper express determinations
required by 254(b) at the time it issues its interlocutory orders, it has no
discretion thereafter to make those orders “final judgments” retroactively.
Prime Lending II v. Trolley’s Real Estate Holdings, 48 Kan. App. 2d 847, 855,
304 P.3d 683 (2013). In Prime Lending, the Court of Appeals expressed no
determination whether the district court’s contemporaneous certification
of its later foreclosure order “would have resolved the jurisdictional
problem.” Prime Lending, 48 Kan. App. 2d at 855-56.
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§ 5.22 Probate Proceedings
Effective July 1, 2006, significant statutory changes occurred in the
appeal of orders from decisions under the Probate Code.
Under K.S.A. 59-2401(a), an appeal from a district magistrate judge
to a district judge may be taken no later than 30 days from the date of
entry of any of the following orders, judgments, or decrees in any case
involving a decedent’s estate:
▪ An order admitting or refusing to admit a will to probate;
▪ An order finding or refusing to find that there is a valid
consent to a will;
▪ An order appointing, refusing to appoint, removing
or refusing to remove a fiduciary other than a special
administrator;
▪ An order setting apart or refusing to set apart a homestead or
other property, or making or refusing to make an allowance
of exempt property to the spouse and minor children;
▪ An order determining, refusing to determine, transferring
or refusing to transfer venue;
▪ An order allowing or disallowing a demand, in whole or in
part, when the amount in controversy exceeds $5,000;
▪ An order authorizing, refusing to authorize, confirming
or refusing to confirm the sale, lease or mortgage of real
estate;
▪ An order directing or refusing to direct a conveyance or
lease of real estate under contract;
▪ Judgments for waste;
▪ An order directing or refusing to direct the payment of a
legacy or distributive share;
▪ An order allowing or refusing to allow an account of a
fiduciary or any part thereof;
▪ A judgment or decree of partial or final distribution;
▪ An order compelling or refusing to compel a legatee or
distributee to refund;
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▪ An order compelling or refusing to compel payments or
contributions of property required to satisfy the elective
share of a surviving spouse under K.S.A. 59-6a201 et seq.,
and amendments thereto;
▪ An order directing or refusing to direct an allowance for the
expenses of administration;
▪ An order vacating or refusing to vacate a previous appealable
order, judgment, decree or decision;
▪ A decree determining or refusing to determine the heirs,
devisees and legatees;
▪ An order adjudging a person in contempt under K.S.A. 596a201 et seq., and amendments thereto;
▪ An order finding or refusing to find that there is a valid
settlement agreement;
▪ An order granting or denying final discharge of a fiduciary;
and
▪ Any other final order, decision or judgment in a proceeding
involving a decedent’s estate.
PRACTICE NOTE: K.S.A. 59-2402a sets forth
circumstances under which an interested party can
request the transfer of a petition from a district magistrate
judge to a district judge for hearing.
Any appeal from a district judge to an appellate court in a case
involving a decedent’s estate is to be taken in the manner provided by
chapter 60 of the Kansas Statutes Annotated for other civil cases. K.S.A.
59-2401(b). See § 5.18 through § 5.21, supra. The order appealed from
continues in force unless modified by temporary orders entered by the
appellate court and is not stayed by a supersedeas bond filed under
K.S.A. 60-2103. K.S.A. 59-2401(c). However, the court from which the
appeal is taken may require a party, other than the State of Kansas or
any subdivision thereof or any city or county in this state, to file a bond
of sufficient sum or surety “to ensure that the appeal will be prosecuted
without unnecessary delay” and to ensure payment of all judgments,
damages or costs. K.S.A. 59-2401(d).
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K.S.A. 59-2401a allows an interested party to appeal from a district
magistrate judge to a district judge no later than 14 days from any final
order, judgment or decree entered in any proceeding under:
▪ The Kansas Adoption and Relinquishment Act (K.S.A. 592111 et seq.);
▪ The Care and Treatment Act for Mentally Ill Persons (K.S.A.
59-2945 et seq.);
▪ The Care and Treatment Act for Persons With an Alcohol
or Substance Abuse Problem (K.S.A. 59-29b45 et seq.); and
▪ The Act for Obtaining a Guardian or Conservator, or Both
(K.S.A. 59-3050 et seq.). K.S.A. 59-2401a(b).
An interested party may appeal from a decision of a district judge to
an appellate court under article 21 of chapter 60 of the Kansas Statutes
Annotated. In re Guardianship of Sokol, 40 Kan. App. 57, 61-62, 189 P.3d
526 (2008). With the addition of the Sexually Violent Predator Act (K.S.A.
59-29a01 et seq.), the acts are the same as those for appeal from a district
magistrate judge.
The interested parties who may appeal under K.S.A. 59-2401a include
the following:
▪ The parent in a proceeding under the Kansas Adoption and
Relinquishment Act (K.S.A. 59-2111 et seq.);
▪ The patient under the Care and Treatment Act for Mentally
Ill Persons (K.S.A. 59-2945 et seq.);
▪ The patient under the Care and Treatment Act for Persons
With an Alcohol or Substance Abuse Problem (K.S.A. 5929b45 et seq.);
▪ The person adjudicated a sexually violent predator under
the Sexually Violent Predator Act (K.S.A. 59-29a01 et seq.);
▪ The ward or conservatee under the Act for Obtaining a
Guardian or Conservator, or Both (K.S.A. 59-3050 et seq.).
▪ The parent of a minor person adjudicated a ward or
conservatee under the Act for Obtaining a Guardian or
Conservator, or Both (K.S.A. 59-3050 et seq.);
▪ The petitioner in the case on appeal; and
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▪ Any other person granted interested party status by the court
from which the appeal is being taken. K.S.A. 59-2401a(e).
As in decedent’s estate cases, the order appealed from continues
in force unless modified by temporary orders entered by the appellate
court and is not stayed by a supersedeas bond filed under K.S.A. 60-2103.
K.S.A. 59-2401a(c). Also, the court from which the appeal is taken may
require a party, other than the State of Kansas or any subdivision thereof
or any city or county in this state, to file a bond of sufficient sum or surety
“to ensure that the appeal will be prosecuted without unnecessary delay”
and to ensure payment of all judgments, damages or costs. K.S.A. 592401a(d).
§ 5.23 Juvenile Proceedings
Under the Revised Kansas Code for Care of Children, an appeal can
be taken by any party or interested party from any order of temporary
custody, adjudication, disposition, finding of unfitness or termination of
parental rights. K.S.A. 38-2273(a). An appeal must be taken within thirty
days of the date the order was filed. See In re D.I.G., 34 Kan. App. 2d 34,
36, 114 P.3d 173 (2005). K.S.A. 38-2202(v) defines a party as “the state,
the petitioner, the child and any parent of the child.” K.S.A. 38-2202(m)
defines an interested party as “the grandparent of the child, a person with
whom the child has been living for a significant period of time when the
child in need of care petition is filed, and any person made an interested
party by the court under K.S.A. 38-2241 and amendments thereto.”
VII. TRANSFER OF CASES BETWEEN THE APPELLATE
COURTS
§ 5.24 General
In both criminal and civil appellate proceedings, cases can be
transferred from the Court of Appeals to the Supreme Court as provided
in K.S.A. 20-3016 and 20-3017. See K.S.A. 22-3602(d); K.S.A. 60-2101(b).
See also K.S.A. 20-3018 for other transfers.
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§ 5.25 Upon Motion of a Party
Within 30 days after notice of appeal has been served on the appellee,
any party to the appeal can file a motion (an original and 8 copies) with the
clerk of the appellate courts requesting that a case pending in the Court
of Appeals be transferred to the Supreme Court for final determination.
K.S.A. 20-3017; Rule 8.02. The motion should be captioned in the Supreme
Court even though the action is pending in the Court of Appeals. See §
12.22, infra.
PRACTICE NOTE: If a party misses the 30-day filing
deadline, it may still be advisable to file the motion to call
the Supreme Court’s attention to the case. The motion
of the party may be denied as untimely filed, but the
court can then transfer the case on its own motion.
The motion must set forth the nature of the case, demonstrate that the
case is within the Supreme Court’s jurisdiction, and establish one or more
of the grounds for transfer found in K.S.A. 20-3016(a). Such grounds
include: an issue or issues are not within the jurisdiction of the Court of
Appeals (citation must be made to controlling constitutional, statutory, or
case authority); the subject matter of the case has significant public interest;
the legal questions raised have major public significance; or, the Court of
Appeals caseload requires a transfer for the expeditious administration of
justice (the motion must contain sufficient data concerning the state of
the docket to demonstrate this point). K.S.A. 20-3016(a); Rule 8.02.
PRACTICE NOTE: The caseload of the Court of
Appeals is not usually persuasive unless combined with
another ground.
The opposing party may respond within 7 days of service of the
motion. Rule 5.01. The motion will be considered by the Supreme Court
and granted or denied in that court’s discretion. A party’s failure to file a
motion to transfer is deemed a waiver of objection to Court of Appeals
jurisdiction. K.S.A. 20-3017.
§ 5.26 Upon Motion of the Supreme Court
If a case within the jurisdiction of the Court of Appeals is erroneously
docketed in the Supreme Court, the Supreme Court will transfer the case
to the Court of Appeals. K.S.A. 20-3018(a). Likewise, if a case within the
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jurisdiction of the Supreme Court is erroneously docketed in the Court
of Appeals, the Supreme Court will transfer the case to the Supreme
Court. K.S.A. 20-3018(a). In addition, any case within the jurisdiction of
the Court of Appeals and properly docketed with that court can, at any
time, be transferred to the Supreme Court for final determination on the
Supreme Court’s own motion. K.S.A. 20-3018(c).
PRACTICE NOTE: Transfer on the Supreme Court’s
own motion usually indicates the subject matter or legal
questions are of public interest or legal significance.
§ 5.27 Upon Motion of the Court of Appeals
Prior to final determination of any case before it, the Court of
Appeals can request that a case be transferred to the Supreme Court by
certifying the case is “within the jurisdiction of the Supreme Court” and
the Court of Appeals has made one or more of the following findings:
(1) one or more issues in the case are not within the jurisdiction of the
Court of Appeals; (2) the subject matter of the case has significant public
interest; (3) the case involves legal questions of major public significance;
or (4) the caseload of the Court of Appeals is such that the expeditious
administration of justice requires the transfer. K.S.A. 20-3016(a). The
request will be considered by the Supreme Court and granted or denied
in the court’s discretion. K.S.A. 20-3016(b).
§ 5.28 Appeal of Right from Court of Appeals to Supreme Court
In both criminal and civil appellate proceedings, a party can appeal
from the Court of Appeals to the Supreme Court as a matter of right in
any case in which a question under the constitution of either the United
States or the State of Kansas arises for the first time as a result of the
Court of Appeals decision. K.S.A. 22-3602(e); K.S.A. 60-2101(b). See §
7.45, infra.
§ 5.29 Petitions for Review by Supreme Court of Court of
Appeals Decisions
In both criminal and civil appellate proceedings, a party can petition
the Supreme Court to review any decision of the Court of Appeals as
provided in K.S.A. 20-3018(b). K.S.A. 22-3602(d); K.S.A. 60-2101(b). See
§ 7.46, infra. “‘[D]ecision’ means any formal or memorandum opinion,
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order, or involuntary dismissal under [Supreme Court] Rule 5.05.” Rule
8.03(a).
A petition for review must be filed and served within 30 days after
the date of the Court of Appeals decision. K.S.A. 20-3018(b); Rule
8.03(a)(1). This is a jurisdictional requirement. Rule 8.03(a)(1). Time
limits for filing cross-petitions, responses and replies, as well as content
and form requirements, are set out in Rule 8.03.
There is no requirement that a motion for rehearing by the Court of
Appeals be filed before a petition for review is filed. K.S.A. 20-3018(b).
Nor does the filing of a petition for review preclude filing a motion for
rehearing or modification in the Court of Appeals. Rule 8.03(a)(2). If
a motion for rehearing or modification is filed, the Supreme Court will
not take action on the petition for review until the Court of Appeals has
made a final determination of all motions for rehearing or modification.
Rule 8.03(a)(2).
PRACTICE NOTE: A petition for review must be filed
and served within 30 days after the date of the Court
of Appeals decision even if a motion for rehearing or
modification is filed in the Court of Appeals. A motion
for rehearing or modification does not toll the time to
file a petition for review. Note that the 3-day mailing
rule does not apply to petitions for review or motions
for rehearing or modification. The 30 days is counted
from the date the decision is filed.
In cases where review is not granted as a matter of right, whether
to grant a petition for review is a decision committed to the discretion
of the Supreme Court. Rule 8.03(e)(2). Non-controlling, non-exclusive
factors considered by the Supreme Court include: (1) the importance
of the question presented; (2) the existence of a conflict between the
decision sought to be reviewed and prior decisions of the Supreme Court
or another panel of the Court of Appeals; (3) the need for exercising the
Supreme Court’s supervisory authority; and (4) the final or interlocutory
character of the judgment, order, or ruling sought to be reviewed. K.S.A.
20-3018(b).
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PRACTICE NOTE: The Supreme Court website lists
an additional consideration for deciding whether to grant
a petition for review: “The original Court of Appeals
decision demonstrates the need for update, clarification,
or synthesis of case law.” See www.kscourts.org/Casesand-Opinions/Petitions-for-review/default.asp.
VIII. MULTI-LEVEL APPEALS
§ 5.30 General
In some instances, appeals involve multiple levels of review. Some
examples are identified below. Reference should be made to the above
discussion concerning appealable orders.
§ 5.31 Appeals from Decisions of District Magistrate Judges in
Criminal Cases
A defendant has the right to appeal any judgment of a district
magistrate judge to a district judge. K.S.A. 22-3609a(1). A notice of appeal
must be filed with the clerk of the district court within 14 days after the
date the sentence is imposed. K.S.A. 22-3609a(2). Before a defendant
can appeal a criminal judgment of a magistrate judge to a district judge
for a trial de novo under 22-3609a, there must be both a conviction of
guilt and a sentence imposed by the magistrate judge. State v. Remlinger,
266 Kan. 103, 107, 968 P.2d 671 (1998). A defendant who wishes to seek
further review can appeal in accordance with the rules governing appeals
from the district court to the appellate courts.
A defendant may appeal a conviction before a district magistrate
judge even if the conviction was based upon a guilty plea. State v. Gillen,
39 Kan. App. 2d 461, 181 P.3d 564 (2008). K.S.A. 22-3609a has been held
not to authorize an appeal to the district court by a defendant from an
order of a district magistrate judge revoking the defendant’s probation.
State v. Legero, 278 Kan. 109, Syl. ¶ 5, 91 P.3d 1216 (2004).
The prosecution can appeal the following decisions of a district
magistrate judge to a district judge: (1) an order dismissing a complaint,
information, or indictment (see State v. Kleen, 257 Kan. 911, 896 P.2d 376
[1995]); (2) an order arresting judgment; (3) upon a question reserved;
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(4) upon an order granting a new trial in any case involving a class A
or B felony or, for crimes committed on or after July 1, 1993, any case
involving an off-grid crime; and (5) pretrial orders quashing a warrant
or search warrant, suppressing evidence, or suppressing a confession or
admission. K.S.A. 22-3602(d); K.S.A. 22-3603. Again, further review by
the appellate courts is possible.
For appeals from orders of a district magistrate judge to a district
judge in juvenile offender proceedings, see K.S.A. 38-2382. However, an
appeal of a magistrate judge’s decision to prosecute a juvenile as an adult
is properly filed with the appellate courts, not the district court, after a
conviction. State v. Hartpence, 30 Kan. App. 2d 486, 494, 42 P.3d 1197
(2002).
§ 5.32 Appeals from Decisions of District Magistrate Judges in
Civil Cases
In a civil action, an appeal can be taken from an order or final
decision of a district magistrate judge to a district judge. A notice of
appeal must be filed with the clerk of the district court within 14 days
after entry of the order or decision. K.S.A. 60-2103a(a). Failure to file
a timely appeal deprives the district court of jurisdiction. See Explorer,
Inc. v. Duranotic Door, Inc., No. 104,560, 2011 WL 5833351, *3 (Kan. App.
2011) (unpublished opinion).
In limited actions, an appeal can be taken from “orders, rulings,
decisions or judgments” of a district magistrate judge to a district judge.
K.S.A. 61-3902(a). A notice of appeal must be filed with the clerk of the
district court within 14 days after entry of the order or decision except
that notice of appeal by the defendant from that portion of a judgment
in a forcible detainer action granting restitution of the premises must be
filed within 7 days after entry of judgment. See K.S.A. 61-3902(a).
Under the Revised Kansas Code for Care of Children, appeals can
be taken from an order entered by a district magistrate judge to a district
judge in accordance with K.S.A. 38-2273(b).
In all three instances, further review by the appellate courts is
permissible in accordance with the rules governing appeals from the
district court to the appellate courts.
For appeals from a district magistrate judge to a district judge in
probate proceedings, see § 5.22, supra.
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§ 5.33 Appeals from Municipal Court to District Court in
Criminal Cases
A defendant found guilty of violating a municipal ordinance can appeal
the judgment to the district court in the county where the municipality is
located. K.S.A. 22-3609(1); K.S.A. 12-4601(a). An appealable judgment
requires both conviction and sentence. State v. Remlinger, 266 Kan. 103,
106, 968 P.2d 671 (1998); City of Halstead v. Mayfield, 19 Kan. App. 2d
186, 865 P.2d 222 (1993). A municipal court’s judgment is effective when
announced. Paletta v. City of Topeka, 20 Kan. App. 2d 859, 860, 893 P.2d
280, rev. denied 258 Kan. 859 (1995); City of Lenexa v. Higgins, 16 Kan. App.
2d 499, Syl. ¶ 1, 825 P.2d 1152, rev. denied 250 Kan. 804 (1992).
A defendant in a municipal court proceeding has no right to appeal to
the district court a decision of the municipal court revoking his probation.
City of Wichita v. Patterson, 22 Kan. App. 2d 557, Syl. ¶ 3, 919 P.2d 1047
(1996), rev. denied 260 Kan. 992 (1996). See also State v. Legero, 278 Kan.
109, 112, 91 P.3d 1216 (2004). “A defendant in municipal court may only
appeal a judgment of that court which adjudges him or her guilty of a
violation of a municipal ordinance.” Patterson, 22 Kan. App. 2d 557, Syl.
¶ 2. Additionally, an appeal under K.S.A. 22-3609 conditionally vacates
a municipal court conviction, and if the appeal is not dismissed by the
defendant, and is dismissed without prejudice, or is heard de novo by the
district court, then the municipal court convictions are vacated. City of
Salina v. Amador, 279 Kan. 266, Syl. ¶ 5, 106 P.3d 1139 (2005).
The procedural requirements for appeals from municipal court to
the district court are set out in K.S.A. 22-3609. The municipal judge
may require an appeal bond. K.S.A. 12-4602. While notice of appeal
must be filed within 14 days of the date the sentence is imposed, K.S.A.
22-3609(2), the filing of a K.S.A. 12-4602 appeal bond within that time
frame is not a jurisdictional requirement in perfecting an appeal from a
municipal court conviction. See City of Newton v. Kirkley, 28 Kan. App.
2d 144, 146, 12 P.3d 908 (2000) (interpreting an earlier version of K.S.A.
22-3609).
The city can appeal to the district court “upon questions of law.”
K.S.A. 12-4601(b). See also City of Wichita v. Maddox, 271 Kan. 445,
449, 24 P.3d 71 (2001). The “question must be one which calls for an
answer which will aid in the correct and uniform administration of the
criminal law, and the question will not be entertained on appeal merely
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to demonstrate errors of a trial court.” City of Overland Park v. Travis, 253
Kan. 149, Syl. ¶ 4, 853 P.2d 47 (1993).
§ 5.34 Appeals from Municipal Court to District Court in Civil
Cases
Under K.S.A. 60-2101(d), a “judgment rendered or final order made
by a political or taxing subdivision, or any agency thereof, exercising
judicial or quasi-judicial functions may be reversed, vacated or modified
by the district court on appeal.” See Kansas Board of Education v. Marsh,
274 Kan. 245, 255, 50 P.3d 9 (2002). The appeal is taken in the county
where the order was entered. For procedural requirements, see K.S.A.
60-2101(d).
§ 5.35 Appeals from Decisions in Small Claims Court
An appeal may be taken from any judgment under the Small Claims
Procedure Act. Judgments under the Small Claims Procedure Act are first
appealed to a district judge other than the one who entered the disputed
order for a trial de novo. K.S.A. 61-2709(a). A notice of appeal must
be filed with the clerk of the district court within 14 days after entry
of judgment. K.S.A. 61-2709(a). Further appeal may be taken as from
any other decision of the district court. K.S.A. 61-2709(b). Procedural
requirements are identified in K.S.A. 61-2709.
§ 5.36 Certified Questions
Under the Uniform Certification of Questions of Law Act, K.S.A.
60-3201 et seq., the Kansas Supreme Court can answer questions of law
certified to it by the United States Supreme Court, a United States Court
of Appeals, a United States District Court, or the highest appellate court,
or the intermediate appellate court of any other state when requested, if
in any proceeding before the certifying court there is involved a question
of law of this state that may be determinative of the cause pending in the
certifying court and it appears to the certifying court there is no controlling
precedent in the decisions of the Kansas Supreme Court or the Kansas
Court of Appeals. K.S.A. 60-3201.
The courts mentioned above may seek an answer to a question of law
on their own motion or upon motion of a party to the cause. K.S.A. 603202. The certification order must set forth the question to be answered
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and a statement of all facts relevant to the question certified that fully
shows the nature of the controversy in which the question arose. K.S.A.
60-3203. “If either party to a certified question from a federal court
wants to add facts to those the certifying federal court furnishes [the
Supreme Court], any changes must be made in the federal court. The
same rule applies to evidentiary rulings made by the federal court.” Ortega
v. IBP, 255 Kan. 513, Syl. ¶ 1, 874 P.2d 1188 (1994). The Supreme Court
can obtain portions of the record from the certifying court if necessary.
K.S.A. 60-3204. Under K.S.A. 60–3201, “certified questions may present
only questions of law….” Superior Boiler Works, Inc. v. Kimball, 292 Kan.
885, 890, 259 P.3d 676 (2011) (citing Koplin v. Rosel Well Perforators, Inc., 241
Kan. 206, 207, 734 P.2d 1177 [1987]).
Briefs addressing the question and arguments on the briefs are
considered by the Supreme Court. K.S.A. 60-3206. A written opinion is
issued. K.S.A. 60-3207.
PRACTICE NOTE: Upon receipt of the certification
order, the Kansas Supreme Court first determines
whether it will answer the certified questions presented
by granting or denying the certifying court’s order. If
granted, the Kansas Supreme Court sets a briefing
schedule, allowing 30 days per side for briefing. That
schedule is subject to motions for extension of time by
the parties, unless the order setting the briefing schedule
provides otherwise.
Likewise, the Kansas Supreme Court or the Kansas Court of Appeals
can, sua sponte or upon motion of a party, order certification of questions
of law to the highest court of any state under the same circumstances.
K.S.A. 60-3208.
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CHAPTER 6
Judicial Review
of Agency Decisions
§ 6.1 Introduction
The Kansas Judicial Review Act (KJRA) was amended significantly
in 2009. The changes do NOT apply retroactively, but instead apply
only to agency decisions made after July 1, 2009. K.S.A. 77-621(a)(2);
Redd v. Kansas Truck Center, 291 Kan. 176, Syl. ¶ 1, 239 P.3d 66 (2010).
Given that fact, it is crucial to determine when the agency decision arose,
so that the proper version of the statute may be applied. When citing
appellate decisions, make sure the holding still applies in light of the 2009
amendments.
Prior to July 1, 2009, K.S.A. 77-621 allowed the appellate courts to
review an agency’s factual findings to make sure they were supported by
“substantial evidence” in “light of the record as a whole.” Appellate case
law limited this review by directing courts to look at the evidence in the
light most favorable to the agency’s ruling. If courts found substantial
evidence that would support the agency’s decision, courts were not
concerned about other evidence that may have led to a different result.
Graham v. Dokter Trucking Group, 284 Kan. 547, 553-54, 161 P.3d 695
(2007).
As amended in 2009, K.S.A. 77-621 defines “substantial evidence”
“in light of the record as a whole” to include evidence both supporting and
detracting from an agency’s finding. Courts must now determine whether
the evidence supporting the agency’s factual findings is substantial when
considered in light of all of the evidence. Redd v. Kansas Truck Center, 291
Kan. at 183.
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Appellate review of an agency’s interpretation of a statute has also
changed. Historically, Kansas courts have given substantial deference
to an administrative agency’s interpretation of a statute that the agency
administers, especially when the agency is one of “special competence and
experience.” Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 629,
154 P.3d 1080 (2007). However, the Kansas Supreme Court no longer
extends deference to an agency’s statutory interpretation. Appellate
review is now unlimited, and practitioners should not cite cases which
rely on the doctrine of operative construction. In re Tax Appeal of LaFarge
Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012).
§ 6.2 Scope of KJRA
Since 1984 the exclusive remedy for appealing state agency action
has been the Kansas Judicial Review Act (KJRA), codified at K.S.A. 77601 et seq. The KJRA provides the exclusive means of judicial review
of action by a state agency. K.S.A. 77-606. Midwest Crane & Rigging, Inc.
v. Kansas Corporation Comm’n, 38 Kan. App. 2d 269, 271, 163 P.3d 1244
(2007). The KJRA applies to all state agencies unless specifically exempt
by statute. K.S.A. 77-603(a). See State v. Ernesti, 291 Kan. 54, 61, 239
P.3d 40 (2010). The first step in preparing to appeal an agency action
is to check the agency’s specific enabling legislation to determine if the
agency or any of its discrete proceedings are exempt from the KJRA. The
judicial and legislative branches of state government and political or taxing
subdivisions of the state, or an agency of a subdivision, are specifically
exempt from the KJRA. K.S.A. 77-602(k) (“state agency” defined). Frick
v. City of Salina, 289 Kan. 1, 10-11, 208 P.3d 739 (2009).
Under the KJRA, any person who has standing and has exhausted
administrative remedies may timely seek judicial review of “final agency
action.” K.S.A. 77-607. “Agency action” is defined in K.S.A. 77-602(b)
as:
▪ The whole or a part of a rule and regulation or an order;
▪ The failure to issue a rule and regulation or an order; or
▪ An agency’s performance of, or failure to perform, any
other duty, function or activity, discretionary or otherwise.
See Jones v. State, 279 Kan. 364, 367-68, 109 P.3d 1166
(2005).
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K.S.A. 77-607(b)(1) negatively defines “final agency action” as “other
than nonfinal agency action.” Agency action is “nonfinal” if the “agency
intends or is reasonably believed to intend [such action] to be preliminary,
preparatory, procedural or intermediate.” K.S.A. 77-607(b)(2). For a
good discussion on the difference between “final” and “nonfinal” agency
action, see Bartlett Grain Co. v. Kansas Corporation Comm’n, 292 Kan. 723,
727, 256 P.3d 867 (2011).
K.S.A. 77-608 allows for judicial review of nonfinal agency action
only if:
▪ It appears likely that the person seeking review will qualify
for judicial review of the related final agency action; and
▪ Postponement of judicial review would result in an
“inadequate remedy or irreparable harm disproportionate
to the public benefit derived from postponement.”
For a general discussion, see Friedman v. Kansas State Bd. of Healing
Arts, 287 Kan. 749, 753-54, 199 P.3d 781 (2009).
§ 6.3 Persons Entitled to Review
The next step in the process in preparing for judicial review of an
administrative agency action is to be sure that the person requesting review
is qualified to seek judicial review under the Act. K.S.A. 77-607.
§ 6.4 Standing
To qualify for standing under K.S.A. 77-611, the person seeking
review must:
▪ Be a person to whom the action is specifically directed;
▪ Have been a party to the agency proceedings that led to
the agency action; see Board of Sumner County Comm’rs v.
Bremby, 286 Kan. 745, 751-761, 189 P.3d 494 (2008).
▪ Be a person subject to the rule or regulation being
challenged; or
▪ Be a person authorized to challenge an agency action under
another provision of law.
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§ 6.5 Exhaustion of Remedies
K.S.A. 77-612 establishes that a petition for judicial review may be
filed only after all administrative remedies are exhausted. This includes
remedies both within the agency whose action is being challenged and
within any other agency authorized to exercise administrative review. See,
generally, Friedman v. Kansas State Bd. of Healing Arts, 287 Kan. 749, 752,
199 P.3d 781 (2009). Exhaustion of remedies refers to administrative
procedures and not to individual issues. Rebel v. Kansas Dept. of Revenue,
288 Kan. 419, 427, 204 P.3d 551 (2009).
After July 1, 2009, there are four exceptions to this rule:
▪ A petitioner for judicial review of a rule or regulation
need not have participated in the rulemaking proceeding
upon which that rule and regulation is based, or have
petitioned for its amendment or repeal;
▪ A petitioner for judicial review need not exhaust
administrative remedies to the extent that the KJRA
or any other statute states that exhaustion is not
required;
▪ A petitioner for judicial review need not seek
reconsideration unless a statute makes the filing of a
petition for reconsideration a prerequisite for seeking
judicial review; and
▪ A court may relieve a petitioner of the requirement
to exhaust any or all administrative remedies to the
extent that the administrative remedies are inadequate
or would result in irreparable harm. K.S.A. 77-612.
If a statute requires that a petition for reconsideration by the
agency must be filed as a prerequisite to the accrual of any cause of
action in district court, administrative remedies are not exhausted until
the petitioner files a petition for reconsideration and the agency files its
order on reconsideration or fails to file an order within the prescribed
time. See United Steelworkers of America v. Kansas Comm’n on Civil Rights, 253
Kan. 327, Syl. ¶¶ 2-3, 855 P.2d 905 (1993). In order to sufficiently exhaust
administrative remedies, the petition for reconsideration must be filed by
an aggrieved party. In re Tax Exemption Application of Reno Township, 27
Kan. App. 2d 794, 796, 10 P.3d 1 (1999).
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Counsel should consult the enabling statutes of the applicable agency
to determine if there is any deviation in the exhaustion requirement. See
Zarda v. State, 250 Kan. 364, 826 P.2d 1365 (1992) (taxpayer can challenge
constitutionality of regulations without exhausting administrative remedies
but cannot seek tax relief without exhausting administrative remedies);
Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 761 P.2d
320 (1988).
§ 6.6 Primary Jurisdiction
Although it has not been codified in the KJRA, Kansas courts will
apply the concept of primary jurisdiction and refuse to act on a petition
for judicial review until agency action is complete.
“The doctrine of primary jurisdiction applies only when an agency and
a court have concurrent jurisdiction over an action and is usually applied
to isolated issues rather than to the entire proceeding. ‘The doctrine is
invoked when the courts have initial jurisdiction over a claim but when
it is likely that the action will require resolution of issues which, under a
regulatory scheme, have been placed in the hands of the administrative
body.’ [Citation omitted.]” Grindsted Products, Inc. v. Kansas City Power &
Light Co., 21 Kan. App. 2d 435, 446-47, 901 P.2d 20 (1995).
§ 6.7 Initiating Review – Where to File
An action for judicial review is initiated by filing a petition for judicial
review in the proper court, along with payment of the appropriate fee.
K.S.A. 77-614(a). The fee schedule is established at K.S.A. 60-2001.
The type of relief available to a petitioning party is limited by K.S.A.
77-622. Damages or compensation are allowable only if authorized by
another provision of law. K.S.A. 77-622(a). Other available remedies
include declaratory or injunctive relief. K.S.A. 77-622(b).
Generally, jurisdiction for relief under the KJRA is in district court.
But the enabling statutes of some agencies provide for appellate review
directly by the Kansas Court of Appeals, the Kansas Supreme Court, or
some different manner of review.
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Some examples include:
▪ Orders from the Workers Compensation Board of
Appeals. K.S.A. 44-556(a).
▪ Decisions of the Court of Tax Appeals. K.S.A. 742426(c)(2).
▪ Appeals of utility rate cases from the Kansas
Corporation Commission. K.S.A. 66-118a(b).
Except as otherwise provided, venue under the KJRA is in the county
in which the order or agency action is entered or effective, or where the
rule is promulgated. K.S.A. 77-609(b). See Mildfelt v. State, 11 Kan. App.
2d 617, 620-21, 731 P.2d 884 (1987).
§ 6.8 Timely Filing and Service
The time frame within which a petition for judicial review must
be filed is determined and dependent upon the type of action being
challenged. Review of an agency rule or regulation may be filed at any
time unless the agency’s enabling statutes provide otherwise. K.S.A. 77613(a). If reconsideration has not been requested and is not a prerequisite
for seeking judicial review, a petition seeking review of an agency order
must be filed within 30 days after service of the order. K.S.A. 77-613(b).
See also In re Tax Appeal of Newton Country Club Co., 12 Kan. App. 2d 638,
753 P.2d 304, rev. denied 243 Kan. 779 (1988).
If an agency, other than the Kansas Corporation Commission, fails
to act in a timely manner as required by law, the aggrieved party is entitled
to interlocutory review of the agency’s failure to act. K.S.A. 77-631. If the
Kansas Corporation Commission does not issue an order on a petition for
reconsideration within 30 days, it is deemed denied. K.S.A. 77-529(b). If
reconsideration has been requested or is a prerequisite for seeking judicial
review, a petition for judicial review must be filed: (1) Within 30 days
after service of the order rendered after reconsideration unless a further
petition is required under K.S.A. 66-118b (relating to Kansas Corporation
Commission); (2) within 30 days after the order denying the request for
reconsideration; or (3) in proceedings before the Kansas Corporation
Commission, within 30 days of the date the request for reconsideration is
deemed to have been denied. K.S.A. 77-613(c).
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Review of an agency action other than a final order, rule, or regulation
must be requested within 30 days after such action occurs. K.S.A. 77613(d). This deadline may be extended to include petitioner’s attempts to
exhaust administrative remedies. K.S.A. 77-613(d)(1). The deadline may
also be extended to include any period where petitioner did not know
and had no duty to discover, or had a duty to discover but could not
reasonably do so, that the agency had taken action or that the effect of
the action was sufficient to confer standing on the petitioner to request
review. K.S.A. 77-613(d)(2). See also Jones v. State, 279 Kan. 364, 369, 109
P.3d 1166 (2005).
Because the deadline for filing a petition for judicial review begins
with service of the order, it is important to check service provisions in
the Act. Service can be obtained by delivery or by mailing a copy of the
order. As with traditional court service, proper delivery includes handing
the order to the person to be served or leaving it at that person’s place of
business or residence with a person of suitable age. Unless reconsideration
is a prerequisite for seeking judicial review, the final order must state the
agency officer to receive service. K.S.A. 77-613(e). See Heiland v. Dunnick,
270 Kan. 663, 670-71, 19 P.3d 103 (2001).
Service by mail, for purposes of the KJRA, is deemed to be complete
upon mailing consistent with provisions of the Kansas Administrative
Procedure Act (KAPA). K.S.A. 77-531. Both the KJRA and the KAPA
provide that, where service is completed by mail, a 3-day extension period
is added to the time calculation. K.S.A. 77-613(e); K.S.A. 77-531.
The party seeking review must provide notice and service to the
head of the agency being challenged. The petitioner bears the burden
of providing notice of the petition for judicial review to all other parties
participating in any adjudicative proceeding that led to the challenged
agency action. K.S.A. 77-614(d). See Claus v. Kansas Dept. of Revenue, 16
Kan. App. 2d 12, 825 P.2d 172 (1991).
Prior to July 1, 2009, the Kansas appellate courts held that the notice
requirements of K.S.A. 77-613(e) require strict compliance. Claus v. Kansas
Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991). However,
the July 1, 2009, changes to the KJRA included an amendment which
provides that when using any method of serving process, “substantial
compliance shall effect valid service of process” if the court finds that,
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notwithstanding the service irregularity, the party served was “made aware
that the petition or appeal” was filed. K.S.A. 77-614(e).
At all stages of this process, the three mail days allowed by K.S.A.
60-206(d) apply to most administrative appeals, but do NOT apply to
cases involving the Workers Compensation Board of Appeals, Jones
v. Continental Can Co., 260 Kan. 547, 557, 920 P.2d 939 (1996), or cases
involving an appeal of unemployment benefits from the Department of
Human Resources, K.S.A. 44-709(c).
§ 6.9 Pleading Requirements of Petition for Judicial Review
As stated in K.S.A. 77-614(b), the KJRA requires that the petition
for judicial review:
(1) list name and mailing address of petitioner;
(2) list name and mailing address of the agency whose actions are
being challenged;
(3) identify agency action being challenged and include a copy,
summary, or brief description of the agency action;
(4) identify all parties to any adjudicative proceedings that led to
the agency action;
(5) state facts demonstrating petitioner is entitled to judicial
review;
(6) state reasons petitioner believes relief should be granted; and
(7) specify the type and extent of relief requested.
Because the KJRA is the exclusive remedy for seeking judicial review
of state agency action akin to an appellate process, the Kansas Supreme
Court has, in the past, applied a strict compliance standard to the pleading
requirements enumerated in K.S.A. 77-614(b). See Kingsley v. Kansas Dept.
of Revenue, 288 Kan. 390, 397, 204 P.3d 562 (2009).
Perhaps in response to Kingsley and its predecessors, the Kansas
Legislature amended K.S.A. 77-614 in 2009 to add subsection (c), which
now provides that the failure to include some of the information required
by K.S.A. 77-614(b) “in the initial petition” does not deprive the reviewing
court of jurisdiction. Rather, the reviewing court should “freely” give
leave to supplement the petition with omitted information “when justice
so requires.” A party responding to a petition for judicial review has 30
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days after the agency has been served or other parties received notice in
which to file an answer or other responsive pleading with the court. A
party in a judicial review proceeding is not required to file an answer.
K.S.A. 77-614(d).
§ 6.10 Stays and Other Remedies
Unless precluded by other law, a state agency may grant a stay or
other temporary remedy during the pendency of judicial review. K.S.A. 77616(a). Interlocutory review of the agency’s disposition of an application
for stay is permitted by K.S.A. 77-616(b). The KAPA likewise provides
for a stay of the effectiveness of an agency order until the time to seek
judicial review has run. K.S.A. 77-528.
A court may not grant an application for a stay or other temporary
remedy where an agency has determined its action is justified to protect
against a substantial threat to the public health, safety, or welfare, unless
the court finds:
▪ The applicant is likely to prevail on final disposition of the
case;
▪ In the absence of the relief sought the applicant will suffer
irreparable injury;
▪ The granting of the relief sought will not substantially
harm other parties; and
▪ The threat to the public health, safety, or welfare is not
sufficiently serious to justify the agency action.
K.S.A. 77-616(c).
Where the court determines that such relief is justified, it may remand
the matter back to the agency for action consistent with the determination
or issue a stay itself. No court may issue an ex parte order granting a
stay under the KJRA unless authorized by a rule of the Kansas Supreme
Court. K.S.A. 77-616(f). See Buchanan v. Kansas Dept. of Revenue, 14 Kan.
App. 2d 169, 172, 788 P.2d 285 (1989).
§ 6.11 Preserving Issues for Review Under the KJRA
In an appeal of a decision by an administrative agency, a party may
only argue issues raised before the agency. The KJRA specifically forbids
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raising new or additional issues on review of an agency action. K.S.A. 77617; In re Equalization Appeal of Prieb Properties, 47 Kan. App. 2d 122, 126,
275 P.3d 56 (2012).
If a transcript of an administrative hearing is not available, the
reviewing court will examine the record, including the administrative
hearing notes, to determine the issues raised. Kingsley v. Kansas Dept. of
Revenue, 288 Kan. 390, 204 P.3d 562 (2009).
PRACTICE NOTE: If an administrative hearing is
not transcribed, counsel must be sure all issues raised
are reflected in the record, for example, listed in the
hearing officer’s notes. A better practice is for counsel
to file a written list of challenges to be presented at the
administrative hearing to ensure all issues are preserved
for judicial review.
A party may obtain judicial review of a new issue only if:
▪ The agency lacked jurisdiction to grant an adequate
remedy based on a determination of the issue;
▪ The action taken is a rule and regulation and the person
seeking review has not been a party to adjudicative
proceedings in which the issues have been raised;
▪ The action challenged is an order and the party seeking
review was not notified of the adjudicative proceeding;
or
▪ The court determines that the interests of justice would
be served through judicial resolution of an issue that
arose from a change in controlling law after the agency
action, or when the agency action occurred after the
party had exhausted administrative remedies.
K.S.A. 77-617. See Chowning v. Cannon Valley Woodwork, Inc., 32 Kan.
App. 2d 982, 991, 93 P.3d 1210 (2004) (if issue does not qualify as an
exception in K.S.A. 77-617, court cannot review issue if it was not raised
at administrative level).
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§ 6.12 The Agency Record
The only action required of an agency under the KJRA is the
submission of the agency record. The original or a certified copy of
the official record in the matter appealed from must be transmitted to
the court within 30 days after service of the petition for judicial review
unless the court or another statutory provision allows additional time
for transmitting the record. K.S.A. 77-620(a). See Pieren-Abbott v. Kansas
Department of Revenue, 279 Kan. 83, 95, 106 P.3d 492 (2005).
The record must contain any agency documents that evidence the
action taken by the agency. In addition, the record must include any
documents identified by the agency as having been considered before
the action was taken or that served as a basis for the action. K.S.A. 77620(a).
The list of documents that must be maintained as part of the “official
record” of an agency adjudicative proceeding is found in the KAPA at
K.S.A. 77-532. The statute was amended in 2009.
The parties to an action for judicial review may stipulate to a
shortened, summarized, or organized record. K.S.A. 77-620(c). Where
a party unreasonably refuses such a stipulation, the court may impose
the costs of preparing transcripts or copies of the record on that party.
K.S.A. 77-620(d).
If part of the record has been preserved without a transcript, the
agency has the duty to prepare a transcript to be included in the record
transmitted to the court. The costs of preparing such a transcript,
however, will be borne by the party challenging the agency action unless
the court orders otherwise. K.S.A. 77-620(b).
§ 6.13 Scope of Review
Unless a statute provides otherwise, the KJRA defines the scope of
review of state agency action in K.S.A. 77-621. Enabling statutes may
provide for the method of review of certain agency action:
▪ Review of decisions under the Workers Compensation
Act is limited to questions of law. K.S.A. 44-556(a).
The determination of whether the factual findings of
the Workers Compensation Board are supported by
substantial competent evidence is a question of law. See
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Gleason v. Samaritan Home, 260 Kan. 970, 976, 926 P.2d 1349
(1996). As amended in 2009, the KJRA requires the court
to review the adequacy of the evidence “in light of the
record as a whole,” by considering evidence that supports
and contradicts the Board’s findings. K.S.A. 77-621(d);
▪ When reviewing decisions by the Kansas Human Rights
Commission (formerly Kansas Commission on Civil
Rights) under the Kansas Act Against Discrimination
or the Kansas Age Discrimination in Employment Act,
the district court must examine the record and make
independent findings of fact and conclusions of law.
K.S.A. 44-1011(b). See Kansas State Univ. v. Kansas Comm’n
on Civil Rights, 14 Kan. App. 2d 428, 431-32, 796 P.2d 1046,
rev. denied 246 Kan. 767 (1990); and
▪ Decisions other than under K.S.A. 8-254 made by the
division of motor vehicles, including orders that deny,
cancel, suspend, or revoke a driver’s license are subject to
de novo review by the district court, but administrative
decisions are still reviewed under KJRA. See Kingsley v.
Kansas Dept. of Revenue, 288 Kan. 390, 396, 204 P.3d 562
(2009).
With a few exceptions limited to specific agencies, the KJRA provides
that judicial review of disputed issues of fact must be confined to the
agency record supplemented by any additional evidence taken pursuant to
the Act. K.S.A. 77-618. The KJRA envisions only one circumstance where
the court may receive additional evidence. K.S.A. 77-619. Supplemental
evidence can be received only if the evidence relates to the validity of the
agency’s actions at the time they were taken and the evidence is necessary
to assist the court in deciding issues concerning:
▪ Improper constitution of the decision-making body;
▪ Improper motives or grounds for disqualification of the
individuals making the decision; or
▪ Unlawfulness of the procedure or decision-making
process. K.S.A. 77-619(a). See Doe v. Kansas Dept. of Human
Resources, 277 Kan. 795, 812-14, 90 P.3d 940 (2004).
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If a court finds additional fact-finding and other proceedings are
needed before the court can make a final disposition of the matter on
review, the court may remand the matter to the agency to take action
needed and to make those findings. A matter may be remanded to an
agency if:
▪ The agency failed to prepare or preserve a record adequate
for judicial review;
▪ The court finds new evidence has become available relating
to the validity of agency action at the time it was taken, that
the parties did not know and had no duty to or could not
have reasonably discovered until after the agency action,
and the interests of justice would be served by remand to
the agency;
▪ The agency improperly excluded or omitted evidence from
the record; or
▪ A relevant provision of the law changed after the agency
action and the court has determined that the new provision
may control the outcome of the proceeding. K.S.A. 77619(b).
Under the KJRA, as at common law, the burden of proving the
invalidity of an administrative agency action is on the challenging party.
The validity of the agency action shall be determined by applying the
standards of judicial review to the action at the time it was taken. K.S.A.
77-621(a). See also Peck v. University Residence Committee of Kansas State
Univ., 248 Kan. 450, 455-56, 807 P.2d 652 (1991); Angle v. Kansas Dept. of
Revenue, 12 Kan. App. 2d 756, 761, 758 P.2d 226, rev. denied 243 Kan. 777
(1988).
The KJRA requires that the court conducting the review make a
separate and distinct ruling on each material issue on which it bases its
decision. K.S.A. 77-621(b). In K.S.A. 77-621(c), the Act requires relief to
be granted when the court determines:
▪ The agency action was based on a facially unconstitutional
action, statute, or rule and regulation;
▪ The agency acted outside its jurisdiction as provided by
law;
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▪ The agency has failed to decide an issue requiring
resolution;
▪ The agency has erroneously interpreted or applied the
law;
▪ The agency engaged in an unlawful procedure or otherwise
failed to follow prescribed procedure;
▪ The agency was not properly constituted as a decisionmaking body or was subject to disqualification;
▪
The agency action was based on a determination of fact
not supported by substantial evidence when viewing the
record as a whole; or
▪ The action is otherwise unreasonable, arbitrary, or
capricious.
In contrast to prior practice, the courts no longer extend deference
to an agency’s statutory interpretation. In re Tax Appeal of LaFarge Midwest,
293 Kan. 1039, 1044, 271 P.3d 732 (2012). The doctrine of operative
construction should no longer be applied.
In July 2009, K.S.A. 77-621 was amended to add subsection (d),
which reads:
2013
“For purposes of this section, ‘in light of the
record as a whole’ means that the adequacy
of the evidence in the record before the court
to support a particular finding of fact shall be
judged in light of all the relevant evidence in the
record cited by any party that detracts from such
finding as well as all of the relevant evidence
in the record, compiled pursuant to K.S.A.
77-620, and amendments thereto, cited by any
party that supports such finding, including any
determinations of veracity by the presiding
officer who personally observed the demeanor
of the witness and the agency’s explanation of
why the relevant evidence in the record supports
its material findings of fact. In reviewing the
evidence in light of the record as a whole, the
court shall not reweigh the evidence or engage
in de novo review.”
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6-15
The KJRA mandates the court use the harmless error rule in reviewing
agency action. K.S.A. 77-621(e). Thus, even if the agency action is invalid
or flawed, it will be upheld unless the action caused actual harm to a party.
See Frank v. Kansas Dept. of Agriculture, 40 Kan. App. 2d 1024, 1035, 198
P.3d 195 (2008). An appellate court reviews a district court decision on
a petition for judicial review in the same manner as decisions in other
civil cases. K.S.A. 77-623. When appellate courts review a district court
decision under KJRA, the scope and method of review is the same as the
district court’s review. See Jones v. Kansas State University, 279 Kan. 128,
139, 106 P.3d 10 (2005).
§ 6.14 Remedies
The remedy provision of the KJRA vests the court with considerable
discretion in formulating a remedy when considering a petition for judicial
review. K.S.A. 77-622. The only limitation placed on an available remedy
is that damages or compensation for agency action will be available only
to the extent they are expressly authorized by another statute. K.S.A. 77622(a). Usually this will be the enabling statute or statutes for the specific
agency. It is imperative that counsel refer to the organic law of the agency
whose action is being challenged to determine the scope of remedies
available.
Other than the limitation on damages, the KJRA allows the court to
grant practically any relief that the court may deem appropriate whether
it be mandatory, injunctive or declaratory; preliminary or final; temporary
or permanent; equitable or legal. K.S.A. 77-622(b). In fashioning relief
under K.S.A. 77-622(b), the court may:
▪ Order the administrative agency to take action or exercise
discretion as required by law;
▪ Set aside or modify an action taken by the agency;
▪ Enjoin or stay an action of the agency;
▪ Remand a matter for further proceedings;
▪ Render a declaratory judgment; or
▪ Take any other action that is both authorized and
appropriate.
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See, e.g., Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n,
36 Kan. App. 2d 83, 138 P.3d 338, rev. denied 282 Kan. 790 (2006) (KCC
orders reversed and remanded for further consideration); Hallmark Cards,
Inc. v. Kansas Dept. of Commerce & Housing, 32 Kan. App. 2d 715, 729,
88 P.3d 250 (2004) (reversed and remanded with directions to agency to
certify taxpayer as eligible for tax credit); Kansas Sunset Assocs. v. Kansas
Dept. of Health & Environment, 16 Kan. App. 2d 1, 3, 818 P.2d 797 (1991)
(declaratory relief possible under KJRA).
The KJRA allows a court to grant any ancillary relief necessary to
compensate for the effects of official acts wrongfully taken or withheld.
However, attorney fees may be awarded only to the extent they are expressly
authorized by other law. K.S.A. 77-622(c). It is, therefore, imperative that
counsel consult the enabling statutes of the specific agency to determine
if and under what circumstances attorney fees are available.
§ 6.15 Appeals Outside of the KJRA
As indicated earlier, some political or taxing subdivisions and even
some agency actions are not governed by the KJRA. If the legislature has
exempted a particular agency or agency action, such a provision will be
controlling. For agencies falling outside of the KJRA and whose enabling
statutes do not provide a method for seeking judicial review, K.S.A. 602101(d) is the statutory provision establishing judicial review of quasijudicial action taken by administrative agencies. For a list of state agency
actions exempted from the KJRA, see K.S.A. 77-603(c).
Administrative agencies and political subdivisions often have broad
powers, and actions taken can be categorized as legislative, administrative,
executive, or judicial/quasi-judicial. Only the latter can be appealed
under K.S.A. 60-2101(d). True judicial functions are functions “with
which a court might have been charged in the first instance or functions
courts have historically performed or did perform prior to the creation
of the administrative body. A function that is not a true judicial function
may nevertheless be quasi-judicial if it involves a discretionary act of a
judicial nature taken by a body empowered to investigate facts, weigh
evidence, and draw conclusions as a basis for official actions.” Brown v.
U.S.D. No. 333, 261 Kan. 134, 135, Syl. ¶ 13, 928 P.2d 57 (1996). “A
decision of a legislative body is quasi-judicial if a state or local law (1)
requires notice to the community before the action, (2) requires a public
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hearing pursuant to notice, and (3) requires the application of criteria
established by law to the specific facts of the case.” Heckert Construction Co.
v. City of Ft. Scott, 278 Kan. 223, 224, 91 P.3d 1234 (2004).
Where no specific enabling statute provides for judicial review of an
administrative action and K.S.A. 60-2101(d) is inapplicable, a party must
resort to extraordinary remedies to gain access to judicial review. The
extraordinary remedies available in Kansas are actions for mandamus,
declaratory judgment, injunction, and quo warranto. See Barnes v. Board
of Cowley County Comm’rs, 293 Kan. 11, 17, 259 P.3d 725 (2011).
The scope of review of a judicial or quasi-judicial administrative
decision made outside of the KJRA is limited to determining whether
the government body acted within the scope of its authority, whether the
decision was substantially supported by evidence, or whether the decision
was fraudulent, arbitrary, or capricious. Robinson v. City of Wichita Retirement
Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15 (2010).
§ 6.16 Workers Compensation Cases
Under Supreme Court Rule 9.04, when an appeal is taken from the
Workers Compensation Board to the Court of Appeals under K.S.A. 44556, the appellant must file a petition for judicial review with the clerk
of the appellate courts. See form at § 12.3, infra. The petition must be
filed within 30 days of the date of the order. K.S.A. 44-556(a). The 3day mail rule does not apply to extend the petition filing date in workers
compensation cases. Jones v. Continental Can Co., 260 Kan. 547, 920 P.2d
939 (1996). An appellee may cross-petition within 20 days of service of
the petition. K.S.A. 44-556(a).
The petition for judicial review, filed with the clerk of the appellate
courts, must comply with K.S.A. 77-614. The petition must be accompanied
by certified copies of the decision(s) of the administrative law judge, the
request for Workers Compensation Board review, and the order of the
Workers Compensation Board. The petition must be accompanied by
the docket fee and a docketing statement required by Supreme Court Rule
2.04. The petition must be served upon the board and all parties. Rule
9.04.
Within 14 days of the filing of the petition, the appellant must request
in writing to the board that it certify the record of proceedings. See form
at § 12.4, infra. If a record was made of any hearing before the board, a
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transcript must be ordered by the appellant within 14 days of filing the
petition. The transcript must otherwise be prepared and advance payment
made in accordance with Rule 3.03. The appellant must file copies of the
request(s) for transcript and certification of the record with the clerk of
the appellate courts and serve copies upon all other parties at the time the
request(s) are filed with the board. Rule 9.04.
PRACTICE NOTE: It is acceptable, even preferable,
to file with the petition for judicial review and docketing
statement any requests for transcripts and the request
for the board to certify the record of proceedings to the
clerk of the appellate courts.
After any transcript of a board hearing is completed, the board must
transmit the record to the clerk of the appellate courts and send notice,
with a copy of the table of contents, to the parties that the record is being
transmitted. The brief of the appellant is due 30 days from the date the
record is transmitted to the appellate courts. Rule 9.04.
All other procedures and matters not provided for above are governed
by the Supreme Court Rules Relating to Appellate Practice and applicable
statutes.
§ 6.17 Checklist for Review of Agency Action
2013
(1)
Check the agency enabling legislation to determine whether
state agency action is involved or if the agency action is exempt
from the KJRA.
(2)
Make sure that the agency action being appealed is a “final
agency action” or that a basis for appealing “nonfinal agency
action” is established.
(3)
Ensure that the person seeking review meets all standing
requirements.
(4)
Check the enabling statutes of the specific agency (a) to ensure
that all available administrative remedies have been exhausted,
(b) to determine whether a petition for reconsideration must
be filed, and (c) to consider whether the doctrine of primary
jurisdiction applies.
(5)
Check the enabling statutes of the specific agency to determine
the appropriate court for review.
Judicial Review of Agency Decisions
(6)
Be sure the petition for judicial review meets pleading
requirements.
(7)
Review the service provisions and determine the filing
deadline.
(8)
Serve the agency head and all participating parties in the original
proceeding with notice of the petition.
(9)
Carefully review the specific agency enabling legislation to
determine the appropriate scope of review.
(10)
Review the organic law of the specific agency to determine the
scope of remedies available, including the possibility of attorney
fees.
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Appellate Procedure
7-
CHAPTER 7
Appellate Procedure
I.
NOTICE OF APPEAL
§ 7.1 Generally
An appeal is initiated by filing a notice of appeal with the clerk of
the district court. See §§ 12.5, 12.6, infra. Timely filing of a notice of
appeal is jurisdictional. A notice of appeal must be served on all parties as
provided in K.S.A. 60‑205, but failure to do so does not affect the validity
of the appeal. K.S.A. 60‑2103(b).
§ 7.2 Chapter 60 Appeals
A notice of appeal must specify the parties taking the appeal,
designate the judgment or part of the judgment appealed from, and name
the appellate court to which the appeal is taken. K.S.A. 60‑2103(b). The
appellate court is without jurisdiction to hear arguments of a party not
named either directly or by inference in the notice of appeal. Anderson v.
Scheffler, 242 Kan. 857, Syl. ¶ 1, 752 P.2d 667 (1988). An appellate court
only obtains jurisdiction over the rulings identified in the notice of appeal.
Hess v. St. Francis Regional Med. Center, 254 Kan. 715, Syl. ¶ 1, 869 P.2d 598
(1994); Anderson, 242 Kan. 857 at Syl. ¶ 3; In re Marriage of Galvin, 32 Kan.
App. 2d 410, 411, 83 P.3d 805 (2004).
PRACTICE NOTE: This is one area where too much
specificity can cause problems later. It is advisable to
file an appeal generally from all adverse rulings.
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“When there is but one court to which an appeal may be taken,
the failure to correctly name that court in the notice of appeal is a mere
irregularity to be disregarded unless the appellee has been misled or
otherwise prejudiced.” City of Ottawa v. McMechan, 17 Kan. App. 2d 31,
Syl. ¶ 2, 829 P.2d 927 (1992).
A notice of appeal must be filed within 30 days from “entry of the
judgment.” K.S.A. 60‑2103(a). Note, however, that a notice of appeal
from an order appointing or refusing to appoint a receiver must be filed
within 14 days of the entry of the order. K.S.A. 60‑1305.
Entry of judgment occurs when a journal entry or judgment form
is filed. K.S.A. 60‑258. A judgment is effective only when a journal entry
or judgment form is signed by the judge and filed with the clerk of the
district court. Trial docket minutes or judge’s notes do not comply with
K.S.A. 60‑258 and do not constitute entry of judgment. See In re Marriage
of Wilson, 245 Kan. 178, 180, 777 P.2d 773 (1989).
A notice of appeal filed after oral pronouncement of final judgment
but before the filing of a journal entry is a premature notice of appeal
that becomes effective upon the filing of the journal entry. A premature
notice of appeal must identify the judgment appealed from with sufficient
certainty to inform the parties of the rulings to be reviewed. Rule
2.03(a).
Rule 2.03 also validates a premature notice of appeal filed after a
journal entry of final judgment but prior to the filing of a journal entry on
a motion to alter or amend, or a motion to reconsider. See Resolution Trust
Corp. v. Bopp, 251 Kan. 539, Syl. ¶ 3, 836 P.2d 1142 (1992); Cornett v. Roth,
233 Kan. 936, 939‑40, 666 P.2d 1182 (1983); Hundley v. Pfuetze, 18 Kan.
App. 2d. 755, 756‑757, 858 P.2d 1244, rev. denied 253 Kan. 858 (1993).
Another type of premature notice of appeal occurs when multiple
parties or issues are involved in a case and judgment is entered that does
not dispose of all the parties or claims. The Kansas Supreme Court has
held that a notice of appeal filed after the interlocutory order becomes
effective upon entry of final judgment. “If a judgment is entered disposing
of all claims against one of multiple parties, and a premature notice of
appeal is filed and has not been dismissed, then a final judgment disposing
of all claims and all parties validates the premature notice of appeal
concerning the matters from which the appellant appealed.” Honeycutt v.
City of Wichita, 251 Kan. 451, Syl. ¶ 6, 836 P.2d 1128 (1992).
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A premature notice of appeal only applies to judgments entered
before the notice of appeal was filed. Therefore, if a party wishes to
appeal any orders, including orders disposing of posttrial motions, or a
final judgment occurring since the filing of the previous notice of appeal,
another notice of appeal should be filed after entry of those orders or
final judgment. Rule 2.03(b); L.P.P. Mortgage, Ltd. v. Hayse, 32 Kan. App.
2d 579, 587-88, 87 P.3d 976 (2004).
A district court may extend the time for filing a notice of appeal
upon a showing of excusable neglect based on the failure of a party to
learn of the entry of judgment. Such an extension may not exceed 30
days from the expiration of the original time for filing a notice of appeal.
K.S.A. 60‑2103(a); Rowland v. Barb, 40 Kan. App. 2d 493, 496-98, 193 P.3d
499 (2008). In addition, if a court enters judgment without notifying
the parties as required by K.S.A. 60‑258 and Rule 134, the time for filing
a notice of appeal does not begin to run until such compliance occurs.
McDonald v. Hannigan, 262 Kan. 156, Syl. ¶ 3, 936 P.2d 262 (1997); Daniels
v. Chaffee, 230 Kan. 32, 38, 630 P.2d 1090 (1981).
In the past, the appellate courts have sometimes retained an untimely
appeal because of the unique circumstances doctrine. See Johnson v. American
Cyanamid Co., 243 Kan. 291, Syl. ¶ 1, 758 P.2d 206 (1988), and Schroeder
v. Urban, 242 Kan. 710, 750 P.2d 405 (1988). The unique circumstances
doctrine involves judicial action that seemingly extended the time to file a
notice of appeal or posttrial motion.
However, in 2011 the Kansas Supreme Court overruled Johnson
and Schroeder, holding that an appellate court has no authority to create
equitable exceptions to jurisdictional requirements. Board of Sedgwick
County Comm’rs v. City of Park City, 293 Kan. 107, Syl. ¶ 3, 260 P.3d 387
(2011). The court held that use of the unique circumstances doctrine is
illegitimate to excuse an untimely appeal absent infringement on a party’s
constitutional right, such as the right to effective assistance of counsel in
a criminal case. Board of Sedgwick County Comm’rs, 293 Kan. at 119-120.
Certain posttrial motions extend the time for filing a notice of
appeal. If these posttrial motions are filed within 28 days of entry of
judgment, the appeal time stops running and begins running in its entirety
on the date of the entry of the order ruling on the posttrial motion.
K.S.A. 60‑2103(a). The following timely posttrial motions extend the
time for appeal: motion for judgment notwithstanding the verdict (K.S.A.
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60‑250[b]); motion to amend or make additional findings of fact (K.S.A.
60‑252[b]); motion for new trial (K.S.A. 60‑259[b]); and motion to alter
or amend the judgment (K.S.A. 60‑259[f]). The 3‑day mailing rule applies
to posttrial motions if the entry of judgment is mailed, faxed, or e-mailed
to the parties. K.S.A. 60‑206(d).
A K.S.A. 60‑260 motion for relief from judgment or order for clerical
mistakes and for mistake, inadvertence, surprise, excusable neglect, newly
discovered evidence, fraud, or other statutorily enumerated reasons does
not extend the time for filing a notice of appeal. Giles v. Russell, 222 Kan.
629, Syl. ¶ 2, 567 P.2d 845 (1977); Beal v. Rent-A-Center of America, Inc., 13
Kan. App. 2d 375, 377, 771 P.2d 553, rev. denied 245 Kan. 782 (1989). A
trial court does, however, retain broad discretion under K.S.A. 60‑260(b)
and 60‑260(b)(6) to relieve a party from final judgment for any reason
justifying relief from the operation of the judgment if such power is
exercised prior to the time for docketing the appeal. In re Petition of City of
Shawnee for Annexation of Land, 236 Kan. 1, 11‑12, 687 P.2d 603 (1984).
§ 7.3 Chapter 61 Appeals
The rules governing appeals in Chapter 61 cases depend on whether
the case was heard by a magistrate or a district judge and whether the case
was filed in small claims court.
A notice of appeal in Chapter 61 cases must be filed within 30 days
after entry of a district judge’s order, ruling, decision or judgment, and
the procedure specified in K.S.A. 60‑2103(a) and (b) applies. However,
if a defendant desires to appeal an action for forcible detainer granting
restitution of the premises, a notice of appeal must be filed within 7 days
after entry of judgment. K.S.A. 61‑3902. Timely posttrial motions extend
the time to appeal. Nolan v. Auto Transporters, 226 Kan. 176, Syl. ¶ 1, 597
P.2d 614 (1979); Squires v. City of Salina, 9 Kan. App. 2d 199, Syl. ¶ 1, 675
P.2d 926 (1984).
All appeals from orders, rulings, decisions, or judgments of district
magistrate judges in limited actions must be filed in district court within
14 days after entry of the order. K.S.A. 60‑2103a(a). Posttrial motions
do not extend the time to appeal from a district magistrate’s orders. See
K.S.A. 60‑2103a(b). Compare K.S.A. 60‑2103(a).
Appeal from any judgment under the Small Claims Procedure Act
may be taken by filing a notice of appeal with the clerk of the district court
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within 14 days after entry of judgment. Such appeals are tried de novo
before a district court judge other than the judge from whom the appeal
is taken. K.S.A. 61‑2709(a). An appeal may be taken from the decision of
the district court judge within 30 days of entry of that judgment. K.S.A.
61‑2709(b).
§ 7.4 Juvenile Appeals
Any party or interested party (terms defined in K.S.A. 38‑2202[v]
and [m] respectively) may appeal from “any order of temporary custody,
adjudication, disposition, finding of unfitness or termination of parental
rights” under the Revised Kansas Code for Care of Children. K.S.A.
38‑2273(a). If the order was entered by a district magistrate judge, the
appeal is to district court and the notice of appeal must be filed with the
clerk of the district court within 14 days of entry of judgment. K.S.A.
38‑2273(b) and (c); K.S.A. 60‑2103a(a). The appeal must be heard de
novo by the district court within 30 days of filing of the notice of appeal.
K.S.A. 38‑2273(b). Notice of appeal from district court must be filed
within 30 days. K.S.A. 38‑2273(c); K.S.A. 60‑2103(a).
PRACTICE NOTE: An order must be appealed at the
time when it first ripens for appeal purposes, or the right
to appeal that order is waived, even if a subsequent order
may be appealed. In re L.B., 42 Kan. App. 2d 837, 838,
217 P.3d 1004 (2009), rev. denied 289 Kan. 1278 (2010).
The appellate courts lack jurisdiction to review the denial
of interested party status by a district court. In re S.C.,
32 Kan. App. 2d 514, 518, 85 P.3d 224 (2004). Orders
denying termination of parental rights are appealable.
In re T.D.W., 18 Kan. App. 2d 286, 289, 850 P.2d 947
(1993). Appellate courts do not have jurisdiction to
consider a district court’s order changing placement of a
child after termination of parental rights. In re D.M.M.,
38 Kan. App. 2d 394, 399-400, 166 P.3d 431 (2007).
Under the Revised Kansas Juvenile Justice Code, a juvenile offender
may appeal from an order authorizing prosecution as an adult but only
after conviction and in the same manner as criminal appeals. K.S.A.
38‑2380(a)(1). An appeal from an order of adjudication or sentencing
must be taken within 30 days of entry of the order appealed from. K.S.A.
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38‑2380(b); K.S.A. 38‑2382(c); K.S.A. 60‑2103. An appeal may be taken
by the prosecution as provided in K.S.A. 38-2381.
PRACTICE NOTE: K.S.A. 38-2380(a)(1) precludes
an appeal of an order waiving juvenile status when the
juvenile has consented to the waiver. State v. Ellmaker,
289 Kan. 1132, 1149, 221 P.3d 1105 (2009).
§ 7.5 Probate Appeals
Notice of appeal must be filed within 30 days from the entry of the
judgment in any case involving a decedent’s estate or other proceeding
under K.S.A. Chapter 59. K.S.A. 59‑2401(b); K.S.A. 59‑2401a(b); K.S.A.
60‑2103(a). A timely posttrial motion extends the time to appeal. In re
Estate of Burns, 227 Kan. 573, 575, 608 P.2d 942 (1980).
The court from which the appeal is taken may require a party, other
than the state of Kansas or its subdivisions or any Kansas city or county,
to file a bond of sufficient sum or surety “to ensure that the appeal will
be prosecuted without unnecessary delay” and to ensure payment of all
judgments, damages or costs. K.S.A. 59‑2401(d); K.S.A. 59‑2401a(d). See
also § 5.22, supra.
§ 7.6 Mortgage Foreclosure Appeals
A party must appeal within 30 days of the following specific orders
or the issue may not be raised later:
▪ Order of foreclosure. Stauth v. Brown, 241 Kan. 1, 5‑6, 734
P.2d 1063 (1987) (order of foreclosure is final for appeal
purposes if it “determines the rights of the parties, the
amounts to be paid, and the priority of claims”); L.P.P.
Mortgage, Ltd. v. Hayse, 32 Kan. App. 2d 579, 586, 87 P.3d
976 (2004); and
▪ Confirmation of sheriff ’s sale. Valley State Bank v. Geiger,
12 Kan. App. 2d 485, 486, 748 P.2d 905 (1988) (order of
sale cannot be appealed until after sale is confirmed); L.P.P.
Mortgage, Ltd., 32 Kan. App. 2d. at 586 (an order confirming
a sheriff ’s sale is not a repetition of the judgment of
foreclosure).
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§ 7.7 Criminal Appeals
A notice of appeal must specify the parties taking the appeal,
designate the judgment or part of the judgment appealed from, and name
the appellate court to which the appeal is taken. K.S.A. 22‑3606; K.S.A.
60‑2103(b). Appellate review is limited to the rulings specified in the
notice of appeal. Hess v. St. Francis Regional Med. Center, 254 Kan. 715,
Syl. ¶ 1, 869 P.2d 598 (1994); Anderson v. Scheffler, 242 Kan. 857, Syl. ¶ 3,
752 P.2d 667 (1988). However, when “there is but one court to which an
appeal may be taken, the failure to correctly name that court in the notice
of appeal is a mere irregularity to be disregarded unless the appellee has
been misled or otherwise prejudiced.” City of Ottawa v. McMechan, 17 Kan.
App. 2d 31, Syl. ¶ 2, 829 P.2d 927 (1992).
When a crime is committed on or after July 1, 1993, the defendant has
14 days from the oral pronouncement of sentence in the district court to
file a notice of appeal. K.S.A. 22‑3608(c). In addition, both the defendant
and the State may appeal a departure sentence. K.S.A. 21‑6820(a).
An exception to the time limits has been recognized when an indigent
defendant (1) was not informed of his or her rights to appeal, (2) was
not furnished an attorney to exercise that right, or (3) was furnished an
attorney who failed to perfect and complete an appeal. State v. Ortiz, 230
Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). See also State v. Patton, 287 Kan.
200, 195 P.3d 753 (2008)(clarifying parameters of Ortiz exceptions); and
Albright v. State, 292 Kan. 193, Syl. ¶ 5, 251 P.3d 52 (2011) (recognizing
exception for out-of-time appeal of denial of 60-1507 motion where
delay was due to ineffective assistance of counsel).
A criminal defendant has the right to appeal to district court any
conviction in municipal court for violations of municipal ordinances.
Notice of appeal must be filed with the clerk of the district court within
14 days after the date the sentence is imposed. K.S.A. 22‑3609(2).
A criminal defendant also has the right to appeal a judgment of a
district magistrate judge. Notice of appeal must be filed with the clerk
of the district court within 14 days after the date the sentence is imposed.
K.S.A. 22‑3609a. A posttrial motion for new trial following a magistrate’s
judgment does not extend the time for appeal. State v. Wilson, 15 Kan.
App. 2d 308, 313, 808 P.2d 434 (1991).
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Appeals by the State in situations other than those authorized by
statute are not permitted. The State may take an interlocutory appeal
to the Court of Appeals from an order “quashing a warrant or a search
warrant, suppressing evidence or suppressing a confession or admission.”
K.S.A. 22‑3601(a) and K.S.A. 22‑3603. In a case before a district magistrate
judge, the State may appeal any of the above orders to a district judge.
K.S.A. 22‑3602(d).
In State v. Newman, 235 Kan. 29, 34, 680 P.2d 257 (1984), the court
construed the term “suppressing evidence” to include suppression of
evidence that would “substantially impair the State’s ability to prosecute
the case.” The Newman threshold test does not apply to “quashing a
warrant or a search warrant” or “suppressing a confession or admission.”
State v. Mooney, 10 Kan. App. 2d 477, 479, 702 P.2d 328, rev. denied 238 Kan.
879 (1985).
PRACTICE NOTE: The Newman threshold test is
jurisdictional. Therefore, in its brief, the State should
argue how the suppression substantially impairs its
ability to prosecute the case.
In an interlocutory appeal by the State, the notice of appeal must
be filed within 14 days after entry of the order. K.S.A. 22‑3603. The
order may be entered by oral pronouncement if such entry is on the
record and expressly states whether the announcement alone is intended
to constitute entry of the order or whether the trial court expects the
order to be journalized and approved by the court before it is deemed to
have been formally entered. State v. Michel, 17 Kan. App. 2d 265, Syl. ¶ 3,
834 P.2d 1374 (1992); State v. Bohannon, 3 Kan. App. 2d 448, Syl. ¶ 1, 596
P.2d 190 (1979).
The State also may appeal to the Court of Appeals from (1) an order
dismissing a complaint, information, or indictment, (2) an order arresting
judgment, (3) a question reserved, or (4) an order granting a new trial in
any case involving an A or B felony or, for crimes committed on or after
July 1, 1993, in any case involving an off‑grid crime. K.S.A. 22‑3602(b).
The general rule is a notice of appeal must be filed within 30 days of entry
of the order. K.S.A. 22‑3606 and K.S.A. 60‑2103(a). See State v. Freeman,
236 Kan. 274, 277, 689 P.2d 885 (1984). The rule differs, however, on
questions reserved. If the defendant is found not guilty, the appeal time
begins to run when the defendant is found not guilty and discharged from
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custody and bond with the State’s knowledge. See City of Wichita v. Brown,
253 Kan. 626, 627‑28, 861 P.2d 789 (1993). If the defendant is found
guilty, the appeal time begins to run when sentence is imposed. State v.
Freeman, 236 Kan. at 276-78. Appeals to a district judge may be taken by
the State as a matter of right from cases before a district magistrate judge
from these same orders. K.S.A. 22‑3602(d).
§ 7.8 Cross-Appeals
If an appellee desires to have an appellate court review adverse
rulings and decisions made by the lower court, the appellee must file a
notice of cross‑appeal to preserve that right. K.S.A. 60‑2103(h). See §
12.7, infra. See, e.g., Johnson v. American Cyanamid Co., 239 Kan. 279, 29091, 718 P.2d 1318 (1986) (Supreme Court lacked jurisdiction to remand
case for retrial of issues between plaintiff and defendant physician where
Supreme Court held drug manufacturer, which jury had found to be
100% negligent, to be free of negligence as a matter of law and plaintiff
filed no cross-appeal of jury’s finding that defendant physician was 0% at
fault); and Friends of Bethany Place, Inc. v. City of Topeka, 297 Kan. 1112, 307
P.3d 1255 (2013) (failure to cross-petition for review precluded Supreme
Court’s consideration of First Amendment claim).
Raising new issues in a docketing statement answer or brief is not
sufficient to preserve them for appellate review. 143rd Street Investors v.
Board of Johnson County Comm’rs, 292 Kan. 690, 704, 259 P.3d 644 (2011).
The rules on docketing and motions to docket out of time also apply to
docketing a cross‑appeal. See Rule 2.04(a)(2) and Rule 2.041.
A notice of cross‑appeal must be filed within 21 days after the notice
of appeal has been served and filed. K.S.A. 60‑2103(h). Where a notice of
appeal was filed prematurely, the time for filing the notice of cross-appeal
runs from the entry of final judgment, not the filing of the premature
notice of appeal. In re Marriage of Shannon, 20 Kan. App. 2d 460, 462,
889 P.2d 152 (1995). As with a notice of appeal, a notice of cross‑appeal
should specify the parties taking the appeal, designate the judgment or
part of the judgment appealed from, and name the appellate court to
which the appeal is taken. See K.S.A. 60‑2103(b).
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II.
FILING OR SERVICE OF PAPERS: TIME
COMPUTATIONS
§ 7.9 Generally
Rule 1.05 governs the form and service of papers in the Kansas
appellate courts. All petitions, briefs, motions, applications, and other
papers brought to the court’s attention must be typed on standard size
(8 1/2” by 11”) sheets with at least a one‑inch margin on all sides. Rule
1.05(a). All such papers must include the name, address, telephone
number, fax number, and e-mail address of the person filing the paper.
If the paper is filed by counsel, the counsel’s Kansas attorney registration
number and an indication of the party represented must be included.
If multiple attorneys appear on behalf of the same party, one must be
designated lead counsel for purposes of subsequent filings and notices.
Rule 1.05(b).
PRACTICE NOTE: All documents must be filed
with the clerk of the appellate courts and not sent to
individual justices or judges.
K.S.A. 60‑206 contains the general rules on time computation
and applies to all filings in the appellate courts. Rule 1.05(d). But see
Jones v. Continental Can Co., 260 Kan. 547, 920 P.2d 939 (1996) (Workers
Compensation Act provides its own time limit for appeals of decisions
of the Workers Compensation Board without reference to Chapter 60).
K.S.A. 60-206 was amended in 2010 as part of a general restyling of the
Kansas Code of Civil Procedure. Before the amendments, a time period
of more than 10 days was computed differently than a time period of
10 days or less. Intervening Saturdays, Sundays and legal holidays were
included for longer time periods but excluded for shorter time periods.
Effective July 1, 2010, all deadlines stated in days are computed the
same way. The day of the event that triggers the deadline is not counted.
All other days — including intermediate Saturdays, Sundays, and legal
holidays — are counted, with only one exception: If the period ends on a
Saturday, Sunday, or legal holiday, then the deadline falls on the next day
that is not a Saturday, Sunday, or legal holiday. If the period ends on a day
that the clerk’s office is inaccessible, such as for weather or other reasons,
then the deadline falls on the next accessible day that is not a Saturday,
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Sunday or legal holiday. “Legal holiday” includes holidays designated by
the president or congress of the United States or the legislature of this
state, or observed as holidays by order of the Kansas Supreme Court.
K.S.A. 60-206(a)(6).
To avoid shortening statutory deadlines, the legislature extended most
10‑day time periods to 14 days. The legislature also extended many time
periods of three or five days to seven days. The Kansas Supreme Court
similarly amended the time periods contained in the Kansas Supreme
Court Rules effective July 1, 2010.
Most judgments and orders now are served by first class mail, although
they can also be served by fax or by electronic means if authorized by court
rule. K.S.A. 60-205(b). Rule 1.05(c) allows the parties to make a written
agreement to effect service by electronic means. Whenever a party has
the right or is required to do some act within a prescribed period after the
service of a notice or other paper by mail, fax or e-mail, 3 mailing days
are added to the period of time. K.S.A. 60‑206(d). This rule also applies
to judgments. Danes v. St. David’s Episcopal Church, 242 Kan. 822, 825‑27,
752 P.2d 653 (1988). These mailing days are calendar days.
Note that the 3‑day mailing rule applies only when the measuring
event is service. For example, the mail rule does not apply to petitions
for review because Rule 8.03(a)(1) requires the petition to be served and
filed within 30 days after the date of the decision of the Court of Appeals,
not within 30 days after the date of service of the decision. Therefore,
even if the opinion is mailed, the 30 days will be counted from the date
of decision. Motions for rehearing or modification in the Supreme Court
and Court of Appeals likewise count time from the date the decision is
filed. Rules 7.05 and 7.06.
PRACTICE NOTE: The 30-day time limit to file a
petition for review is jurisdictional. Rule 8.03(a)(1).
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III. STAYS PENDING APPEAL
§ 7.10 Generally
The filing of a notice of appeal does not automatically stay the
effectiveness of the judgment from which the appeal is taken. An appellant
may, however, seek a stay pending appeal.
§ 7.11 Chapter 60 Appeals
The general rule is that a judgment may not be executed and
proceedings may not be taken to enforce a judgment until 14 days after
the entry of judgment. K.S.A. 60‑262(a). To extend the temporary 14‑
day stay, the appellant may file an application for a supersedeas bond
with the district court at the time of or after the filing of the notice of
appeal. The stay becomes effective upon the district court’s approval of
the supersedeas bond. K.S.A. 60‑262(d). Once an appeal is docketed,
application for leave to file a bond may only be made in the appellate
court. K.S.A. 60‑2103(e). However, once the appellate court grants
permission to file a supersedeas bond, the bond itself normally is filed
with the district court and approved by a judge of that court.
An exception to the general rule states that no automatic 14‑day stay
applies after judgment in actions for injunctions or receiverships. K.S.A.
60‑262(a). However, when an order discharges, vacates, or modifies a
provisional remedy, or modifies or dissolves an injunction, an aggrieved
party may apply to the district court to suspend the operation of the order
for up to 14 days in order to file a notice of appeal and obtain approval
of a supersedeas bond. K.S.A. 60‑2103(d). The granting of a stay in
injunction actions and receivership actions is otherwise not a matter of
right but is discretionary with the court. K.S.A. 60‑262(a) and (c).
A supersedeas bond is generally required to be set at the full amount
of the judgment or, for judgments exceeding $1 million, at $1 million plus
25% of any amount in excess of $1 million. However, the court may set
bond in a lower amount if required by other law or for good cause shown.
K.S.A. 60-2103(d). The court must not require a bond or other security
when granting a stay on an appeal by the State, its officers or agencies.
K.S.A. 60‑262(e).
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§ 7.12 Chapter 61 Appeals
K.S.A. 61‑3901 et seq., contain the general rules of procedure for
appeals in limited actions, including a stay of proceedings on appeal. See
K.S.A. 61‑3905.
§ 7.13 Juvenile Appeals
Any order appealed from continues in force unless modified by
temporary orders by the appellate court. K.S.A. 38‑2274(a); K.S.A.
38‑2383(a). The appellate court, pending a hearing, may modify the order
appealed from and make any temporary orders concerning the care and
custody of the child. K.S.A. 38‑2274(b); K.S.A. 38‑2383(b).
§ 7.14 Probate Appeals
Orders appealed from in any case arising under the Probate Code
continue in force unless modified by temporary orders entered by the
appellate court and are not stayed by a supersedeas bond filed under
K.S.A. 60‑2103. K.S.A. 59‑2401(c); 59‑2401a(c). Also, the court from
which the appeal is taken may require a party, other than the State of
Kansas or its subdivisions or any Kansas city or county, to file a bond
of sufficient sum or surety “to ensure that the appeal will be prosecuted
without unnecessary delay” and to ensure payment of all judgments,
damages or costs. K.S.A. 59‑2401(d); K.S.A. 59‑2401a(d). See also § 5.22,
supra.
§ 7.15 Criminal Appeals
A defendant who has been convicted of a crime may be released by
the district court, under the same conditions as those available for release
before conviction, while awaiting sentencing or after filing a notice of
appeal. To grant the application, the district court must find that “the
conditions of release will reasonably assure that the person will not
flee or pose a danger to any other person or to the community.” K.S.A.
22‑2804(1). The application for release after conviction must be made to
the district court even if an appeal has been docketed in an appellate court.
K.S.A. 22‑2804(2). If the district court denies the application or the court
does not grant the relief sought, the defendant may file an application for
release after conviction with the appellate court having jurisdiction over
the appeal. K.S.A. 22‑2804(2).
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Rule 5.06 governs applications for release after conviction filed
with the appellate courts under K.S.A. 22‑2804(2) or K.S.A. 21‑6820(b)
(departure sentences). The application must include the following
information:
▪ District court’s disposition of the application
▪ Nature of the offense and the sentence imposed;
▪ Amount of any appearance bond previously imposed in the
case;
▪ Defendant’s family ties;
▪ Defendant’s employment;
▪ Defendant’s financial resources;
▪ Length of defendant’s residence in the community;
▪ Any record of prior convictions;
▪ Defendant’s record of appearance at court proceedings,
including failure to appear; and
▪ Copy of the district court order stating the reason for its
decision.
PRACTICE NOTE: A large number of applications
for release after conviction do not include all the
required information or a copy of the district court
order. This failure usually results in denial of the
application. Numbering each paragraph is the easiest
way to ensure that all required information is contained
in the application. See § 12.9, infra.
If the district court’s order merely denies bond without reflecting the
reason, the appellate court may remand the matter for the district court
to make additional findings. The appellate court will then not review the
merits of the application until the district court enters these additional
findings. During the remand for additional findings, the status quo remains
in effect. Therefore, to reduce the amount of time an application remains
pending, counsel should seek a district court order that articulates specific
reasons for the denial of the application for release.
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IV. DOCKETING THE APPEAL
§ 7.16 Generally
The appellant must docket the appeal with the clerk of the appellate
courts within 21 days after filing the notice of appeal in the district court.
The address is:
Clerk of the Appellate Courts
Kansas Judicial Center, Room 374
301 SW Tenth Avenue
Topeka, KS 66612‑1507
An appeal is docketed when the following have been filed with the
clerk of the appellate courts:
▪ an original and one copy of the docketing statement (Rule
2.041);
▪ a file‑stamped certified copy of the notice of appeal;
▪ a file‑stamped certified copy of the journal entry, judgment
form, or other appealable order or decision;
▪ a copy of any request for transcript or certificate of
completion of transcript (or a statement that no transcript
is requested);
▪ a file‑stamped certified copy of any posttrial motion and
any ruling on the motion;
▪ a file‑stamped certified copy of any certification under
K.S.A. 60‑254(b); and
▪ the $125 docket fee and any applicable surcharge. Rule
2.04(a)(1) and (d).
If the appeal previously was taken to the district court from a
decision of a municipal judge, district magistrate judge, or pro tem judge,
file‑stamped certified copies of that judge’s order and the notice of appeal
to district court must also be included. Rule 2.04(b). If the appeal is from
an administrative tribunal, file‑stamped certified copies of the agency
decision, any motion for rehearing and the ruling on the motion, and the
petition for judicial review must also be included. See Rule 2.04(c).
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A cross-appeal must be docketed with the clerk of the appellate
courts within 21 days after filing the notice of cross-appeal in the district
court. A cross-appellant must file with the clerk of the appellate courts:
▪ an original and one copy of the docketing statement;
▪ a file‑stamped certified copy of the notice of cross-appeal;
and
▪ a copy of any request for transcript or certificate of
completion of transcript (or a statement that no transcript
is requested). Rule 2.04(a)(2).
Fewer documents are required from a cross-appellant because
documents already filed by the appellant are readily available to court
staff. All other requirements relating to docketing and motions to docket
out of time are the same for both appeals and cross-appeals.
Docketing statements are required in all appeals except appeals under
Rule 10.01 (expedited appeal for waiver of parental consent requirement).
Docketing statements and answers must be on the applicable Judicial
Council forms. Rule 2.041(e). Forms appear at §§ 12.10‑12.13, infra, and
on the Judicial Council website at www.kansasjudicialcouncil.com.
Since 2009, the Supreme Court has imposed a Judicial Branch
Surcharge of $10 to appellate docket fees, bringing the total docket fee to
$135. See Supreme Court Order 2013 SC 60.
The docket fee or excuse for nonpayment must accompany the
documents. The docket fee is nonrefundable and is the only cost assessed
by the clerk’s office for each appeal. It covers the cost of docketing and
processing the appeal through the clerk’s office. A check in payment
for the docket fee should be made payable to the clerk of the appellate
courts. The docket fee will be excused when:
▪ The appellant has previously been determined to be indigent
by the district court, and the attorney for appellant certifies
to the clerk of the appellate courts that the appellant remains
indigent;
▪ The district judge certifies that the judge believes the
appellant to be indigent and it is in the interest of the party’s
right of appeal that an appeal should be docketed in forma
pauperis; or
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▪ Under K.S.A. 60‑2005, the state of Kansas and its agencies
and all Kansas cities and counties are exempt in any civil
action from a docket fee. If on final determination costs
are assessed against the state, its agencies, or a city or county,
the costs must include the docket fee. See Rule 2.04(d).
PRACTICE NOTE: An indigent individual proceeding
pro se must have the district judge’s certification as
outlined above to have the docket fee waived. In
original actions, an affidavit of indigency signed by the
litigant is sufficient to waive the docket fee. In a habeas
corpus action no docket fee is assessed, whether filed
as an original action or filed as an appeal from district
court. As a practical matter, the State does not have to
pay docket fees in criminal matters.
Where unusual fees or expenses are anticipated, the appellate court
may require a deposit in advance to secure the same. Rule 7.07(a).
When the appeal is docketed, notice is mailed to the clerk of the
district court and also to the attorneys of record for the parties stating
that the appeal has been docketed, the date the appeal was docketed,
the appellate court in which the appeal was docketed, the appellate case
number assigned, and the district court case number. Parties designated to
receive notice must include the attorney or party who signed the docketing
statement and those on whom the docketing statement is served. Others
who wish to receive notice must file a separate entry of appearance. See
Rule 2.04(e).
The clerk’s office will prepare an appellate case file that is open to the
attorneys of record but may not be taken from the clerk’s office. Files are
generally also open to the public unless specifically closed by statute, rule,
or order of the court.
PRACTICE NOTE: The appellate courts may close
those files that would be closed in the district court, such
as child in need of care proceedings and adoptions. The
files do remain open to attorneys of record.
Timely docketing is not a jurisdictional requirement, but the appellant
is required to file a motion to docket out of time if beyond the 21‑day
period. See § 12.14, infra.
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PRACTICE NOTE: Although motions to docket out
of time are granted with some frequency, the likelihood
of success diminishes the farther one is past the 21‑day
period.
Failure to docket within 21 days may result in the appeal being
dismissed by the district court. Failure to docket the appeal in compliance
with Rule 2.04 is presumed to be an abandonment of the appeal, and the
district court may enter an order dismissing the appeal. The order is final
unless the appeal is reinstated by the appellate court. To have the appeal
reinstated, an appellant must make an application to the appellate court
having jurisdiction within 30 days after the order of dismissal was entered
by the district court. The application must comply with Rules 5.01 and
2.04. Rule 5.051.
PRACTICE NOTE: A rush to the district court on the
22nd day is not advisable because the appellate court will
likely reinstate the appeal if the appropriate application
is made. Also note that the filing of a motion with the
appellate courts to docket an appeal out of time deprives
the district court of jurisdiction to consider a pending
motion to dismiss. Sanders v. City of Kansas City, 18 Kan.
App. 2d 688, 692, 858 P.2d 833, rev. denied 253 Kan. 860
(1993), cert. denied 511 U.S. 1052, 114 S. Ct. 1611, 128 L.
Ed. 2d 339 (1994).
§ 7.17 Parental Notice Waiver Requirements — Rule 10.01
The only documents needed to docket an appeal by an unemancipated
minor for waiver of parental notice (under Rule 173) are (1) the notice of
appeal and (2) the district judge’s decision. These documents should be
certified by the district court clerk. No docketing statement is required.
The appeal process is expedited, and counsel for the minor must file
the appellant’s brief within 7 days of docketing. There is no appellee or
appellee brief. Unless ordered by the Court of Appeals, there is no oral
argument. The Court of Appeals decision must be filed within 14 days
after the appeal is docketed. In all appellate proceedings, the anonymity
of the minor must be protected, and the minor is to be referred to at all
times only as “Jane Doe.”
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If the Court of Appeals affirms the district court’s decision, the
appellant may petition for discretionary review by the Kansas Supreme
Court under Rule 8.03. There is no motion for reconsideration or
modification in the Court of Appeals. The petition for review is deemed
denied if there is no action by the Supreme Court within 14 days after
filing.
If the petition is granted, the Supreme Court will review the matter on
the record and file its opinion within 14 days from granting the petition.
If the Court of Appeals reverses the decision of the district judge,
there is no discretionary review by the Supreme Court, and the clerk of
the appellate courts must issue the mandate immediately.
V. APPEARANCE AND WITHDRAWAL
§ 7.18 Appearance
The appearance of the attorney for the appellant will be entered as a
matter of course upon the filing of the docketing statement containing the
attorney’s name, address, telephone number, Kansas attorney registration
number, and an indication of the party represented. The attorney or
party on whom the docketing statement was served also will be entered.
See Rule 2.04. An attorney entering a case for the first time during the
appeal must file an entry of appearance with the clerk of the appellate
courts. Rule 1.09(a).
PRACTICE NOTE: Entries of appearance, and
withdrawal when appropriate, are critical to an orderly
appellate process.
An attorney not admitted to practice law in Kansas may participate
in any proceeding before a Kansas appellate court upon motion and
payment of a $100 fee to the clerk of the appellate courts. See Rule 1.10
and §§ 12.15 and 12.16, infra.
A motion pro hac vice must be filed not later than 15 days before the
brief due date or oral argument date. Rule 1.10(d)(1).
To be admitted to practice in a case pending before an appellate
court, the out‑of‑state attorney must be regularly engaged in the practice
of law in another state or territory, must be in good standing under the
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rules of the highest appellate court of that state or territory, and must have
professional business before the court. In addition, the attorney must
associate with a Kansas attorney of record who is regularly engaged in the
practice of law in Kansas and in good standing under all the applicable
rules of the Kansas Supreme Court. The Kansas attorney of record must
be actively engaged in the case, sign all pleadings, documents and briefs,
and attend any prehearing conference or oral argument that is scheduled.
Rule 1.10(a) and (b).
PRACTICE NOTE: Out‑of‑state counsel will receive
notices as a courtesy, but that does not relieve the Kansas
attorney of record of obligations under Rule 1.10(b).
§ 7.19 Withdrawal
Rule 1.09 governs when and how an attorney who has appeared of
record in an appellate proceeding may withdraw. If the withdrawal of the
attorney will leave the client without counsel, the attorney may withdraw
only after filing a motion with the clerk of the appellate courts under Rule
5.01. The motion must state the reason for withdrawal, unless doing so
would violate a standard of professional conduct; demonstrate that the
attorney warned the client that the client is personally responsible for
complying with court orders and time limits and notified the client of
any pending hearing, conference or deadline; and state the client’s current
mailing address and telephone number, if known. The motion must be
served on the client and all parties, and a justice or judge of the appellate
court must issue an order approving the withdrawal. Rule 1.09(b).
If the client will continue to be represented by other counsel of
record or by substituted counsel, then the attorney may withdraw without
a court order by filing a notice of withdrawal that identifies the other
counsel of record or includes an entry of appearance of substituted
counsel. The notice must be served on the client and all parties. Rule
1.09(c) and (d).
If an appointed attorney wishes to withdraw, the attorney must file
a motion with the clerk of the appellate courts under Rule 5.01. The
attorney must state the reason for the withdrawal, if the attorney may
ethically do so, and serve the motion on the client and all parties. If
a justice or judge of the appellate court approves the withdrawal, the
case must then be remanded to the district court for appointment of
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new appellate counsel unless substitute counsel has already entered an
appearance. The district court has 30 days to appoint new counsel. Rule
1.09(e).
PRACTICE NOTE: Motions to withdraw are among
the most frequently rejected motions filed in the appellate
courts. No matter what type of motion to withdraw or
notice of withdrawal is being filed, serve a copy on the
client and all parties.
VI. RECORD ON APPEAL
§ 7.20 Record of Proceedings Before the Trial Court
The entire record consists of all the original papers and exhibits
filed in district court, the court reporter’s notes and transcripts, any other
authorized records of the proceedings, and the appearance docket. Rule
3.01(a). The record on appeal, however, only includes that portion of the
entire record required by the rules or requested by a party. The appellate
court may, of course, order any or all additional parts of the entire record
to be filed. Rule 3.01(b) and Rule 3.02.
PRACTICE NOTE: Rule 3.02 sets out what the clerk
of the district court includes in the record on appeal.
Note, in particular, that jury instructions and trial
exhibits are not included in the record on appeal unless
specifically requested.
An appendix to a brief is not a substitute for the record
on appeal, and any appendix that is not part of the
record on appeal will not be considered.
§ 7.21 Transcript of Proceedings
If the appellant considers a transcript of any hearing necessary to the
appeal, a request must be served on the court reporter within 21 days of
filing the notice of appeal in district court. Unless the parties stipulate as
to specific portions that are not required for the appeal, the request must
be for a complete transcript of any such hearing (except for jury voir dire,
opening statements and closing arguments, which will not be transcribed
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unless specifically requested). However, counsel for both parties should
make a good faith effort to stipulate when possible to avoid unnecessary
expenses. A refusal to stipulate may be considered by the appellate court
in apportioning costs under Rule 7.07(d). Rule 3.03(a).
PRACTICE NOTE: The request for transcript must be
clearly designated “for appeal purposes.” Rule 3.03(a).
Within 14 days after service of appellant’s request for transcript, the
appellee may request a transcript of any hearing not requested by the
appellant. The appellee is responsible for payment for such additional
transcripts, just as the appellant is responsible for payment of the main
transcript. Rule 3.03(c).
PRACTICE NOTE: Additional transcripts may
be requested outside these time frames; however, if
a briefing schedule has been set, it will not be stayed
automatically during transcript preparation. A party
would need to file a motion to stay briefing.
The request for transcript(s) should reflect the judicial district case
number, the division of the district court, the date(s) of the hearing, and
the name of the court reporter. See § 12.19, infra. The request must be
filed in the district court and served on the court reporter and all parties.
A copy of the request and any agreed upon stipulations must be filed with
the appellate court clerk when the appeal is docketed under Rule 2.04.
Rule 3.03(d).
PRACTICE NOTE: The original of any transcript
request is filed with the district court, with service on
the court reporter and all parties. Delay can occur if the
wrong court reporter is served. If you are unsure who
to serve, check with the clerk of the district court. Rule
354 requires the district court judge to have entered
on the appearance/trial docket the name of the court
reporter taking notes of any proceeding. Remember
that a copy of the request for transcript must be filed
with the appellate clerk at the time of docketing.
Within 14 days of receipt of a request for transcript, a court
reporter may demand prepayment of the estimated cost of the transcript.
(No advance payment may be required of the state or its agencies or
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subdivisions.) Failure to make the advance payment within 14 days of
service of the demand is grounds for dismissal of the appeal. If, however,
no demand is made within the 14‑day period, the right to advance payment
is waived. Rule 3.03(f).
PRACTICE NOTE: If advance payment is not made
within 14 days of service of the demand, the court
reporter notifies the appropriate appellate court. That
court will issue an order to counsel to show cause either
why the appeal should not be dismissed for failure to
make payment or why the court should not deem the
transcript request withdrawn.
An indigent criminal defendant may obtain a free transcript for
purposes of an appeal upon request. Most such requests are made by the
Kansas Appellate Defender’s Office.
§ 7.22 Filing of Transcripts
The transcript(s) must be completed within 40 days after the court
reporter is served with a request. The court reporter may file for an
extension of time with the appellate court under Rule 5.02. Upon
completion of a transcript, the court reporter will file the original with
the district court and mail to the appellate court clerk and all parties a
certificate of completion of transcript, showing the date the transcript
was filed in the district court, and the date and type of hearing transcribed.
Rule 3.03(e).
PRACTICE NOTE: Service of the last certificate of
completion starts the running of appellant’s time to
file a brief. Rule 6.01(b). There is no notice from the
appellate clerk’s office. The appellant counts time from
service of the certificate of completion. To compare
the appellate clerk’s calculation, go to kscourts.org
“Appellate Case Inquiry System.”
§ 7.23 Unavailability of Transcripts or Exhibits
If a transcript is unavailable, a party to an appeal may prepare a
statement of the evidence or proceedings by the best available means,
including personal recollection. The statement must be served on the
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adverse parties, who have 14 days to serve objections or proposed
amendments to the statement.
The statement with objections or amendments must then be
submitted to the district court judge for settlement and approval. The
statement as approved must be included in the record on appeal by the
district court clerk. Rule 3.04(a).
Rule 3.04(b) sets out a similar process to create a substitute for an
unavailable exhibit.
§ 7.24 Appeal on Agreed Statement
When the issues in an appeal can be determined without an
examination of the evidence and proceedings in the district court, the
parties may prepare and sign an agreed statement of the case. This
statement must show how the questions arose, how they were decided
in district court, and set out those facts essential to an appellate decision.
This statement must be accompanied by copies of the judgment appealed
from, the notice of appeal, and a concise statement of the issues raised.
This statement must be submitted to the district court judge for
approval within 21 days after filing of the notice of appeal. If the
statement is approved, it is then filed with the clerk of the district court.
The approved statement and inclusions constitute the record on appeal.
Rule 3.05.
PRACTICE NOTE: To comply with Rule 6.02(a)
and Rule 6.03(a), which require citation to the record in
briefs, counsel should cite to appropriate sections of the
agreed statement. For this reason, numbered paragraphs
are advisable in the agreed statement.
§ 7.25 District Court Clerk’s Preparation of the Record on
Appeal
The clerk of the district court compiles the record in one or more
volumes within 14 days after notice from the appellate clerk that the appeal
has been docketed. Rule 3.02 sets out in detail a list of items that must be
included in the record for civil and criminal cases. Documents are filed
chronologically when possible, and transcripts are added when filed by
the court reporter, always as separate volumes. The clerk of the district
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court also prepares a table of contents showing the volume and page
number of each document contained in the record on appeal. A copy of
the table of contents is included in the record and also furnished to each
party. If additions are made to the record after the initial compilation, an
amended table of contents is furnished.
PRACTICE NOTE: A party cannot submit a brief
without reference to the table of contents for citation
to the record. See Rules 6.02(a) and 6.03(a). If the
table of contents is not furnished or if it is incomplete,
contact the district court clerk.
§ 7.26 Request for Additions to the Record on Appeal
Any document in the entire record, even if not specifically listed for
inclusion under Rule 3.02, may be included in the record on appeal by
written request of a party, stating with particularity what is to be added.
Rule 3.02(d).
PRACTICE NOTE: Although the district court clerk
bears the responsibility of compiling the record on
appeal, each party bears the affirmative obligation of
designating evidence within the record that supports
his or her claims on appeal. See Hill v. Farm Bur. Mut.
Ins. Co., 263 Kan. 703, Syl. ¶ 3, 952 P.2d 1286 (1998).
Without the designation of error upon the record, an
appellate court generally presumes the action of the trial
court was proper.
Additions to the record on appeal may be made in one of three
ways:
▪ If the record on appeal has not been transmitted to the clerk
of the appellate courts, the party requesting the addition
must serve the request on the clerk of the district court
and, if the requested addition is an exhibit that is in a court
reporter’s custody, on the reporter, who must promptly
deliver the exhibit to the clerk of the district court. Service
should also be made on opposing counsel and the clerk of
the appellate courts. The clerk of the district court must
add the requested documents to the record on appeal. No
court order is required. Rule 3.02(d)(2).
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▪ If the record on appeal has been transmitted to the clerk of
the appellate courts, which occurs after briefing is completed,
the party requesting the addition must file a motion with
the proper appellate court. See § 12.20, infra. Additions
to the record on appeal may be made only upon an order
of the clerk of the appellate courts or a justice or judge of
an appellate court. If the requested addition is an exhibit
that is in a court reporter’s custody, the order granting the
motion must be served on the reporter, who must promptly
deliver the exhibit to the clerk of the district court. Rule
3.02(d)(3).
▪ Upon its own motion, an appellate court may order any or
all additional parts of the entire record to be filed in the
record on appeal. Rule 3.01(b)(2).
PRACTICE NOTE: It is to a party’s advantage to
add to the record on appeal prior to transmission of
the record to the appellate court. If the document to
be added is part of the entire record as defined in Rule
3.01(a), the district court clerk must add the document
to the record on appeal; no discretion is exercised. Once
the record is transmitted to the clerk of the appellate
courts, the appellate court has discretion whether to
grant the addition. Many motions for additions to the
record on appeal are improperly filed in the appellate
courts before transmission of the record. If such a
motion is improperly filed, the appellate court probably
will deny the motion.
§ 7.27 Transmission of the Record on Appeal
Upon expiration of time for filing of briefs, the clerk of the
appellate court will notify the clerk of the district court to transmit the
record on appeal to the appellate clerk. The district court clerk has 7 days
from notification in which to transmit the record to the appellate clerk.
Documents of unusual bulk and physical exhibits other than documents
will not be transmitted unless requested by a party, who is then responsible
for the transportation and cost of transportation of such items. Rule
3.07.
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PRACTICE NOTE: Attorneys are often surprised
when large exhibits that have been added to the record
are not automatically forwarded to the appellate courts.
The appellate court, on the other hand, often does not
know that the exhibit has been made a part of the record
on appeal. Remember that exhibits are in the custody of
the court reporter, and you should contact the district
court clerk and the court reporter about transportation
arrangements for large or bulky exhibits.
Before a record is transmitted to the clerk of the appellate courts, a
party may file a written request with the district court clerk that part or all
of the record on appeal be duplicated, and such duplication be retained
by the district court clerk. Upon advance payment for such duplication,
the clerk of the district court must copy those portions requested and
then transmit the originals. Rule 3.08.
VII. CONSOLIDATION OF APPEALS
§ 7.28 Generally
Under Rule 2.06, two or more appeals may be consolidated into
one appellate proceeding if one or more issues common to the appeals
are so nearly identical that a decision in one appeal would appear to be
dispositive of all the appeals, or the interest of justice would otherwise
be served by consolidation. See § 12.21, infra. An appellate court may
order consolidation upon a party’s motion under Rule 5.01, or on its own
motion after notice to the parties to show cause why the appeals should
not be consolidated. If consolidation is ordered, further proceedings in
the consolidated appeal are conducted under the lowest appellate case
number.
PRACTICE NOTE: A motion to consolidate should
state with specificity the grounds for consolidation.
Some grounds to consider are any factual similarities, the
types of issues, whether the same parties are involved,
and whether judicial economy will be served by the
consolidation. In addition, a party should consider the
status of each case. For example, if one case is ready
for hearing and the other case was recently docketed,
the court may be reluctant to consolidate the appeals.
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Rule 2.05(a) recognizes that cases may be consolidated in the district
court. If the cases are consolidated in the district court prior to docketing
the appeal, then only one docket fee is required in order to docket the
appeal.
Any party may file a separate brief and be heard separately upon oral
argument.
PRACTICE NOTE: Additional time will not be
allotted for argument unless granted on motion of a
party. The parties must agree among themselves how to
divide the time allotted or motion the court to allocate
the time. Rule 7.01(e) and 7.02(f). See § 7.39, infra.
Rule 2.06(e) also provides an alternative to consolidation. The
appellate court may stay all proceedings in an appeal until common issues
in a separately pending appeal are determined.
PRACTICE NOTE: The appellate court is more likely
to order consolidation than to order a stay.
VIII. MOTIONS
§ 7.29 Generally
Any application to an appellate court should be made in writing
and cannot be contained within a brief. Rule 5.01(a). See also Muzingo v.
Vaught, 18 Kan. App. 2d 823, 829, 859 P.2d 977 (1993). Each motion may
contain only one subject and must state with particularity the grounds
for the motion and the relief or order sought. Rule 5.01(a). Although
the Rules permit a motion to be made orally at a hearing, the practice is
discouraged as it does not give the opposing party time to respond. Cf.
In re Sylvester, 282 Kan. 391, 144 P.3d 697 (2006). Oral arguments are held
on motions only when ordered by an appellate court. Rule 5.01(e).
PRACTICE NOTE: Chapter 12 of this handbook
contains forms for most of the commonly filed motions.
Litigants are encouraged to consult these forms before
crafting their documents as the forms demonstrate the
proper format for motions and, more importantly, the
information an appellate court or the clerk likely will
need to rule on various motions.
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The original motion must be filed with the clerk of the appellate
courts and must be accompanied by the correct number of copies. If
the motion is filed in the Supreme Court, eight copies should be included
with the original; only three copies and the original are required if the
motion is filed in the Court of Appeals. Rule 5.01(b).
PRACTICE NOTE: Additional copies of a motion
are not required if the motion is filed by fax with the
clerk of the appellate courts. The fax-filed motion must
not exceed 10 pages in length. Rule 1.08.
The clerk of the supreme court is also the clerk of the
court of appeals and should be referred to as “the clerk
of the appellate courts.” Rule 1.01(e).
Any party may respond to a motion. Responses to motions should be
filed with the same number of copies as the original motion and must be
timely filed. Rule 5.01(c). Responses to motions for involuntary dismissal
or motions for summary disposition must be filed within 14 days after the
party is served with the motion; responses to all other motions must be
made within 7 days after service. Rule 5.01(c); Rule 5.05(a); Rule 7.041.
PRACTICE NOTE: The 7 and 14 days for response
are calendar days and are counted from the date of
service indicated on the certificate of service. If the
motion is mailed to the other party, 3 mailing (calendar)
days are added to the end of the business days. K.S.A.
60‑206(d). See § 7.9, supra. If no provision is made for
a reply, the court will accept a further filing, but the party
must act quickly before the court rules on the motion.
After a party’s time to respond has passed or a response has been filed,
the appellate court or clerk may rule on the motion and the clerk issues
the court’s order. The clerk has authority to rule on unopposed motions:
for an extension of time, to correct a brief, to substitute a party, or to
withdraw a brief to make corrections. Rule 5.03(a). Additionally, either
the clerk or the appellate court can grant a party’s motion for extension
of time not exceeding 20 days without waiting for the opposing party to
respond. Rule 5.01(d).
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§ 7.30 Motion for Additional Time
A party required or permitted to perform an action by a deadline,
such as filing a brief or responding to a motion, may request additional
time. Rule 5.02(a). Each such motion must be filed before the original
deadline to act has expired and state: the present date, the number of
extensions previously requested, the amount of additional time needed,
and the reason for the request. Rule 5.02(a). See § 12.23, infra.
While the clerk may rule on an unopposed motion for additional
time, only an appellate court may grant an untimely motion for extension
of time. The motion must state the reasons for the delay, and the court
can grant the motion if the reasons constitute excusable neglect. Rule
5.02(c); K.S.A. 60-206(b)(1)(B).
PRACTICE NOTE: At times, each appellate court
will limit the number of motions for extension of time
on which the clerk may act. That number has never
been higher than three.
Generally, when a party is granted additional time to file a brief, the
length of the extension is the length of time the rules originally allowed a
party to file a brief. For example, an appellee is allowed 30 days after service
of an appellant’s brief to file a brief. Any extension, absent exceptional
circumstances, is for 30 days. Similarly, an appellant is allowed 15 days
to file a reply brief so any extension is 15 days. If the court grants an
extension and the time granted is more or less than a party requested, the
party probably miscalculated the due date.
§ 7.31 Motions Relating to Corrections in Briefs
If a party discovers its brief contains typographical errors, printing
errors, or similar non-substantive errors, the party may file a motion to
correct its brief. Such a motion must be made before the appeal is set
for hearing or placed on summary calendar. If the motion is granted, the
movant must make the corrections by the date specified in the order.
If the errors are easily corrected, the party may request to correct
the errors in the clerk’s office without withdrawing the brief. See § 12.26,
infra.
If, however, the error is difficult to correct, such as improperly
collated pages, the party may request to withdraw its brief and submit
corrected copies. See § 12.27, infra.
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§ 7.32 Motion to Substitute Parties
A concise but informative statement must be made in the motion as
to the reasons for the substitution of parties. See § 12.28, infra.
§ 7.33 Motion for Permission to File Amicus Brief
An individual or entity may seek to file a brief as an amicus curiae by
filing a motion with the clerk of the appellate courts and serving it on all
parties. Rule 6.06(a). See §§ 7.33, supra, and 12.31, infra.
PRACTICE NOTE: An application for permission to
file an amicus curiae brief should describe the individual
or entity seeking to file the brief, their interest in the
appeal, and the reason their input would be helpful.
Such applications are not granted as a routine matter.
Additionally, because an amicus curiae should not delay
the appeal’s resolution, the request should be filed as
early in the appeal process as possible.
If an appellate court grants the motion, the brief must be filed at
least 30 days before oral argument and served on all parties. Rule 6.06(b).
Parties are permitted to respond to an amicus curiae but must do so within
21 days after the brief is filed. Rule 6.06(c). An amicus curiae is not entitled
to oral argument. Rule 6.06(d).
§ 7.34 Motion to Consolidate Appeals
A party may file a motion to consolidate multiple appeals when one
or more common issues are so nearly identical that a decision in one
appeal is dispositive of another appeal, or when the interests of justice are
served. Rule 2.06(a). See §§ 7.28, supra, and 12.21, infra.
§ 7.35 Motion to Transfer an Appeal to the Supreme Court
A party may file a motion requesting transfer to the Supreme Court
of an appeal pending in the Court of Appeals. Such a motion must be
filed with the clerk not less than 30 days after the service of the notice of
appeal and must be accompanied by 8 copies. The motion should state
the nature of the appeal; should demonstrate the appeal is within the
Supreme Court’s jurisdiction; and should identify a ground for transfer.
Grounds for transfer include: the Court of Appeals lacks jurisdiction;
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the appeal has significant public interest; the legal question presented
is of major public significance; or expeditious administration of justice
requires transfer due to the status of the Court of Appeals and Supreme
Court dockets. See Rule 8.02. See also K.S.A. 20-3016(a); § 12.22, infra.
IX. VOLUNTARY AND INVOLUNTARY DISMISSALS
§ 7.36 Voluntary Dismissal
Before an opinion is filed in an appeal, the parties may agree to
dismiss the appeal by stipulation. If the parties so agree, the appellant
should file a notice of the stipulation of dismissal with the clerk of the
appellate courts. Or, an appellant can unilaterally dismiss its appeal by
filing a notice of voluntary dismissal with the clerk of the appellate courts
and serving the notice on all parties. Rule 5.04(a). A dismissal may be
either with or without prejudice and should be specified in the filing. See
§ 12.29, infra. If an appeal involves multiple appellants, a dismissal of one
party’s appeal does not affect any other party’s appeal. Rule 5.04(a).
If an appellant unilaterally dismisses the appeal, after motion and
reasonable notice, the court may assess the appellee’s costs and expenses
against the appellant to the extent the costs and expenses could have been
assessed if the appeal had not been dismissed and the judgment or order
had been affirmed. Rule 5.04(b).
§ 7.37 Involuntary Dismissal
An appellate court has discretion to dismiss an appeal due to a
substantial failure to comply with the rules or any other reason requiring
dismissal by law. Rule 5.05(a); see Vorhees v. Baltazar, 283 Kan. 389, 393,
153 P.3d 1227 (2007). The most common reasons for an involuntary
dismissal are a party’s failure to complete a required step in the appellate
process, such as failure to pay a court reporter’s timely demand for advance
payment; failure to file a brief or a motion for extension of time; untimely
filing of the notice of appeal; attempt to appeal from a non-appealable
order; mootness; and acquiescence. See § 12.30, infra. A criminal appeal
may be dismissed under the “fugitive disentitlement doctrine” if a
defendant has absconded from the jurisdiction of the court. See State v.
Raiburn, 289 Kan. 319, 212 P.3d 1029 (2009).
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The court may dismiss an appeal not earlier than 14 days after it
issues a show cause order to the appellant. Or a party may file a motion
for involuntary dismissal with at least 14 days’ notice to the appellant.
Rule 5.05(a).
If the appeal is dismissed, after motion and reasonable notice, the
court may assess the appellee’s costs and expenses against the appellant to
the extent the costs and expenses could have been assessed if the appeal
had not been dismissed and the judgment or order had been affirmed.
Rule 5.05(c).
X. APPEALS PLACED ON SUMMARY CALENDAR
§ 7.38 Summary Calendar Screening and Procedure
After docketing, each appeal is screened. If it is determined the
appeal does not present a new question of law and oral argument would
be neither helpful nor essential to a decision, the appeal will be placed on
summary calendar and the clerk will notify the parties. Rule 7.01(c)(2);
Rule 7.02(c)(2). At least 30 days before the date of the docket, the clerk
will mail each party a docket containing a list of the summary calendar
appeals. Rule 7.01(d); Rule 7.02(e).
If, after receiving a summary calendar notice, a party believes oral
argument would be helpful to the court, the party may file a motion for
oral argument which must be served on all parties and filed with the
clerk not later than 14 days after the clerk mails notice of calendaring.
The motion must state the reason oral argument would be helpful to the
court. Rule 7.01(c)(4); Rule 7.02(c)(4). If the appellate court grants oral
argument, ordinarily 15 minutes is allotted to each side unless there is
reason to grant 20, 25, or 30 minutes. Rule 7.01(c)(4); Rule 7.02(c)(4).
XI. APPEALS SCHEDULED FOR ORAL ARGUMENT
§ 7.39 Requesting Additional Oral Argument Time
Appeals scheduled for oral argument are traditionally allotted 15
minutes per side. If a party believes additional time is warranted, it may
request 20, 25, or 30 minutes by printing “oral argument” on the lower
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right portion of the front cover of the party’s initial brief, followed by the
desired amount of time. Rule 7.01(e)(2); Rule 7.02(f)(2). See § 12.36, infra.
If the appeal is granted additional oral argument time, it will be indicated
on the docket sheet.
§ 7.40 Suggesting a Hearing Location Before the Court of
Appeals
Because panels of the Court of Appeals hold oral arguments
throughout the state, a party may file a suggestion requesting that its
appeal be heard in a particular location. The suggestion should be filed
no later than the deadline for filing the appellee’s brief. Rule 7.02(d)(3).
§ 7.41 Notice of Hearing Date
At least 30 days before the hearing date, the clerk of the appellate
courts will notify the parties or their counsel of the time and location of
the hearing by mailing a copy of the hearing docket. Rule 7.01(d); Rule
7.02(e). The amount of time set aside for argument will be indicated on
the docket sheet.
PRACTICE NOTE: The appellate courts assume
attorneys will be available on the date and time an
argument is scheduled. If a conflict cannot be resolved,
contact the Chief Judge’s Office for Court of Appeals
dockets or the clerk of the appellate courts for Supreme
Court dockets. The courts are more likely to agree
to change a time than to remove an appeal from the
docket. The best practice is to notify the clerk of the
appellate courts in advance of known conflicts with
scheduled hearing dates in either the Court of Appeals
or the Supreme Court and avoid having a case set on a
date when the attorney is not available.
§ 7.42 Procedure at Oral Argument
In the Supreme Court, the clerk of the appellate courts or the clerk’s
designee calls the daily docket in open court at the beginning of each day’s
session. Failure of a party’s counsel to be present at the call of the day’s
docket constitutes a waiver of oral argument. Rule 7.01(d).
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PRACTICE NOTE: Although the docket is not called
at the beginning of each day’s session before panels of
the Court of Appeals, counsel are expected to be present
at the start of the docket.
The amount of oral argument time allotted to each side is indicated
on the oral argument calendar. Rule 7.01(e)(1); Rule 7.02(f)(1). If, however,
there are multiple parties on either side that are not united in interest and
are separately represented, the court on motion will allot time for separate
arguments. Parties that are united in interest should divide the allotted
time among themselves by mutual agreement. If the parties cannot agree
on division of time, such questions should be settled by motion prior to
the hearing date. Rule 7.01(e)(5); Rule 7.02(f)(5).
PRACTICE NOTE: When the Supreme Court sits
in its courtroom in Topeka, the clerk operates a timer
which tracks the oral argument time remaining. The
timer is located on the podium and is visible to the
speaking party. However, parties must keep track of
their own time when appearing before a panel of the
Court of Appeals.
The appellant may reserve for rebuttal a portion of the time granted
by making an oral request at the time of the hearing. Rule 7.01(e)(3); Rule
7.02(f)(3).
PRACTICE NOTE: If an appellant wants to reserve
rebuttal time, it should be requested at the start of
appellant’s oral argument, or it may be considered
waived. A cross-appellant is not ordinarily permitted to
reserve rebuttal time.
Parties who fail to file a brief will not be permitted oral argument.
Rule 7.01(e)(1); Rule 7.02(f)(1). Out-of-state attorneys may be permitted
to argue if the court grants a motion for admission pro hac vice prior to the
argument date. See Rule 1.10.
During the hearing, the court on its own may extend the time for
oral argument. Rule 7.01(e)(4); Rule 7.02(f)(4).
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XII. APPELLATE COURT DECISIONS AND POST-DECISION
PROCEDURE
§ 7.43 Decisions of the Appellate Courts
Decisions of the appellate courts are announced by the filing of
the opinions with the clerk of the appellate courts. Decisions can be
announced any time they are ready; however, decisions generally are filed
each Friday. On the date of filing, the clerk mails one copy of the decision
to the attorney of record of each party or to the party if the party has
appeared in the appellate court but has no counsel of record. In appeals
from the district court, the clerk also mails a copy of the opinion to the
judge of the district court from which the appeal arose. A certified copy
of the opinion is sent to the clerk of the district court when the mandate
issues. Rule 7.03(a).
PRACTICE NOTE: Supreme Court and Court of
Appeals opinions are mailed to the parties and released
to the media at 9:30 a.m. on the day of filing. Parties
may also contact the appellate clerk’s office and inquire
whether an opinion has been filed or check the list of
opinions filed on the Kansas Judicial Branch website
http://kscourts.org/Cases-and-Opinions/opinions/.
Opinions of the appellate courts are released in the form of
memorandum or formal opinions in accordance with K.S.A. 60‑2106.
Rule 7.04(b) sets out the standards for publication of an opinion in the
official reports. Any interested person who believes that an unpublished
opinion of either court meets those standards and should be published
can file a motion for publication with the Supreme Court. The motion
shall state the grounds for such belief and be accompanied by a copy of
the opinion. All parties to the appeal must be served. Rule 7.04(e).
2013
All memorandum opinions (unless otherwise required to be
published) are marked “Not Designated for Publication.” Unpublished
opinions are not favored for citation and may be cited only if the opinion
has persuasive value with respect to a material issue not addressed in a
published opinion of a Kansas appellate court and would assist the court
in disposition of the issue. See Rule 7.04(g)(2)(B). See also State v. Urban,
291 Kan. 214, 223, 239 P.3d 837 (2010) (discussing Rule 7.04); Casco v.
Armour Swift-Eckrich, 34 Kan. App. 2d 670, 680, 128 P.3d 401 (2005), aff ’d
283 Kan. 508, 154 P.3d 494 (2007) (discussing and applying Rule 7.04).
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7-37
PRACTICE NOTE: When citing an unpublished
opinion, a party must attach the opinion to any
document, pleading, or brief that cites the opinion.
Rule 7.04(g)(2)(C). When citing an unpublished opinion
from another jurisdiction, a party should include that
jurisdiction’s rule which allows citation.
By citing Rule 7.041 and the controlling decision, the appellate court
may summarily dispose of an appeal that appears to be controlled by a
prior appellate decision. The court may do this on its own motion or
upon the motion of a party. When the court decides on its own to issue
an order summarily disposing of the appeal, the clerk notifies the parties
of the proposed disposition and the parties then have 14 days to show
cause why the order should not be filed. Rule 7.041(a). If a party moves
for summary disposition under Rule 7.041(b), the motion must be served
on all parties, and the nonmoving parties may file a response no later than
14 days after being served. Rule 7.041(b).
An appellate court may also affirm by summary opinion if it
determines after arguments or submission on the briefs that no reversible
error of law appears and one of the six conditions under Rule 7.042(b)
applies.
§ 7.44 Motion for Rehearing or Modification
A motion for rehearing or modification of a Court of Appeals case
may be served and filed no later than 14 days after the decision is filed.
Rule 7.05(a). A motion for rehearing or modification of a Supreme Court
case may be served and filed no later than 21 days after the decision is
filed. Rule 7.06(a). The motion for rehearing or modification should be
concise and clearly identify the points of law or fact by which the movant
feels the court has erred, overlooked, or misunderstood. See § 12.33,
infra. A copy of the appellate court’s opinion must be attached to the
motion. Rule 7.05(a); Rule 7.06(a).
The timely filing and service of a motion for rehearing or modification
in an appellate court stays the issuance of a mandate until the appellate
court rules on the issues raised by the motion. Rule 7.05(b); Rule 7.06(b).
An order granting rehearing suspends the effect of the original decision
until the matter is decided on rehearing. Rule 7.05(c); Rule 7.06(c). See
Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 614-15, 233 P.3d 205
(2010) (Johnson, J., concurring) (discussing effect of Rule 7.06 when
rehearing is granted).
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PRACTICE NOTE: Filing a motion for rehearing or
modification from a decision of the Court of Appeals
is not a prerequisite for review of that decision by the
Supreme Court and does not extend the time for filing
a petition for review by the Supreme Court. See K.S.A.
20-3018(b); Rule 7.05(b). See also Rule 8.03(a)(2) (noting
that if a petition for review is filed, the Court of Appeals
retains jurisdiction over the appeal and the Supreme
Court will take no action on the petition for review until
the Court of Appeals has made a final determination of
all motions filed under Rule 7.05).
§ 7.45 Appeal as a Matter of Right from Court of Appeals
Any party may appeal as a matter of right to the Supreme Court
from a final Court of Appeals decision when a question involving the
federal or state constitutions arises for the first time as a result of such
decision. K.S.A. 60‑2101(b); K.S.A. 22‑3602(e); Rule 8.03(e)(1). The party
appealing as a matter of right must file a petition for review, in accordance
with Rule 8.03, within 30 days of the Court of Appeals opinion. The 30day period is jurisdictional. Rule 8.03(a).
PRACTICE NOTE: When petitioning to the Supreme
Court as a matter of right from a final decision of the
Court of Appeals, the petition should be identical in
format to a petition for discretionary review under
Rule 8.03(a), but the cover title should read Petition for
Review as a Matter of Right.
§ 7.46 Petition for Review
Any party aggrieved by a Court of Appeals decision may petition
the Supreme Court for review in accordance with K.S.A. 20-3018(b)
and Rule 8.03. See K.S.A. 60-2101(b) (providing supreme court with
jurisdiction to review court of appeals decisions). The granting of review
is discretionary, and the vote of three justices is required to grant the
petition. Rule 8.03(e)(2).
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§ 7.47 Timing of Petition for Review
The petition for review must be filed within 30 days of the filing of
the Court of Appeals opinion. This 30‑day period is jurisdictional, and
the 3-day mail rule does not apply. K.S.A. 20-3018(b); Rule 8.03(a)(1);
Kargus v. State, 284 Kan. 908, 925, 169 P.3d 307 (2007). The petitioner
must file the original and nine copies of the petition with the clerk of the
appellate courts, and attach a copy of the Court of Appeals opinion to
the petition. Rule 8.03(a)(1).
PRACTICE NOTE: The filing of a motion for
rehearing in the Court of Appeals under Rule 7.05 does
not extend the 30-day jurisdictional time period for filing
a petition for review.
§ 7.48 Content of Petition for Review
The petition for review must contain the following items in order:
a clear prayer for review; date of the Court of Appeals decision; a clear
statement of the issues decided by the Court of Appeals of which review
is sought; a short statement of relevant facts; a short argument including
authority stating the reason review is warranted; and an appendix
containing a copy of the Court of Appeals decision. Rule 8.03(a)(4).
The appendix also must include copies of other documents from the
appellate record that are relevant to the issues presented for review. See
Rule 8.03(a)(4)(F).
PRACTICE NOTE: The purpose of the petition,
cross-petition, response, and reply is to identify the
reason the Supreme Court should exercise its discretion
to grant or deny review. Rule 8.03(e)(3). That purpose is
not served if the filings merely repeat arguments made
to the Court of Appeals.
§ 7.49 Grant or Denial of Review
The Supreme Court considers several factors in determining whether
to grant review: the public importance of the question presented; the
existence of a conflict between the Court of Appeals decision and prior
appellate decisions; the need for exercising Supreme Court supervisory
authority; and the final or interlocutory character of the opinion to be
reviewed. K.S.A. 20‑3018(b).
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PRACTICE NOTE: The petition and cross-petition
must include clear statements of the issues on which
review is sought. Generally, the court will not consider
issues not presented or fairly included in the petition,
cross-petition, or response. See Rules 8.03(a)(4)(C)
(content of petition), 8.03(b)(2) (content of crosspetition), and 8.03(c)(3) (content of response); see also
Rule 8.03(g)(1) (discussing issues subject to review). See
also State v. Sanchez-Loredo, 294 Kan. 50, 53-54, 272 P.3d
34 (2012) (discussing petitioner’s failure to challenge
some adverse rulings made by Court of Appeals); State v.
Roberts, 293 Kan. 29, 33, 259 P.3d 691 (2011) (noting the
State must file cross-petition to preserve issues decided
in defendant’s favor).
§ 7.50 Cross-Petitions and Responses
A cross-petition must be filed within 14 days from the date the petition
for review is filed. Rule 8.03(b). As with the petition, the 3-day mail rule
does not apply to this deadline. Responses to a petition or cross-petition
must be filed within 14 days of the date the petition or cross-petition is
filed. The adverse party is not required to respond. Rule 8.03(c).
PRACTICE NOTE: The failure to file a response
to a petition for review is not an admission that the
petition should be granted. Rule 8.03(c)(4). The party
that prevailed in the Court of Appeals should consider
filing a cross-petition for review on issues that were not
decided in favor of that party.
§ 7.51 Page Limits and Covers
The petition for review, cross-petition, and responses must not
exceed 15 pages in length (excluding the appendix), must have a white
cover, and must conform to applicable format provisions of Rule 6.07.
See Rule 8.03(a)(3), (b)(2), and (c)(2).
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§ 7.52 Procedures Following Granting of Review
If review is granted, the Supreme Court may limit the issues to be
considered or may, in civil appeals, consider other issues presented to the
Court of Appeals and preserved for review. Rule 8.03(g)(1) and (h)(4).
Unless the court orders otherwise, the issues subject to review will be
considered on the basis of the record and briefs filed in the Court of
Appeals and, within 14 days of the date of the order granting review, the
parties must file an additional ten copies of the brief(s) originally filed in
the Court of Appeals. Rule 8.03(g)(2).
Within 30 days after the order granting review, any party may file a
supplemental brief. Any opposing party then has 30 days to file a response
brief. Supplemental briefs are limited to one half the page limits set out
in Rule 6.07 and follow the same color scheme used for original briefs.
Supplemental briefs should not repeat material contained in the Court
of Appeals briefs. Sixteen copies of a supplemental brief must be filed
with the clerk of the appellate courts and two copies served on opposing
counsel. See Rules 6.09(a) and 8.03(g)(3).
§ 7.53 Oral Argument
The party whose petition for review was granted argues first in the
Supreme Court and may reserve time for rebuttal. Rule 8.03(g)(4).
§ 7.54 Effect on Mandate
Timely filing of a petition for review will stay the issuance of the
mandate by the Court of Appeals. Rule 8.03(i). During the period for
filing a petition for review and while the petition for review is pending,
the Court of Appeals opinion has no force or effect and the mandate
will not issue until disposition of the appeal on review. If a petition for
review is granted in part, a combined mandate will issue when appellate
review is concluded, unless otherwise directed by the Supreme Court.
Rule 8.03(i).
PRACTICE NOTE: Care should be taken when citing
a Court of Appeals opinion for persuasive authority
before the mandate has issued. The citation to any such
decision must note that the decision is not final and may
be subject to review or rehearing. See Rule 8.03(i).
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§ 7.55 Other Dispositions
Even after review is granted, the Supreme Court may dispose of the
appeal in a manner other than issuing a decision. See Rule 8.03(h). After
a decision is issued in an appeal in which review has been granted, the
parties may petition for rehearing in accordance with Rule 7.06.
§ 7.56 Denial of Review
If review is denied, the decision of the Court of Appeals is final as
of the date the petition is denied, and the clerk of the appellate courts
must issue the mandate under Rule 7.03(b). Rule 8.03(f) and (i). The
denial of a petition for review imports no opinion on the merits of the
appeal, and the denial is not subject to a motion for reconsideration. Rule
8.03(f).
XIII. COSTS AND ATTORNEY FEES § 7.57 Costs
In any appeal in which they are applicable, all fees for service of
process, witness fees, reporter’s fees, allowance for fees and expenses of a
master or commissioner appointed by the appellate court, and any other
proper fees and expenses will be separately assessed. Rule 7.07(a)(1). When
any such fees and expenses are anticipated in an appeal, the appellate
court may require the parties to make advance deposits. Rule 7.07(a)(3).
Unless fixed by statute, an appellate court must approve the fees
and expenses assessed. Rule 7.07(a)(2). Further, an appellate court may
apportion and assess any part of the original docket fee, the expenses for
transcripts, and any additional fees and expenses allowed in the appeal
against any one or more of the parties in such a manner as justice may
require. Rule 7.07(a)(4).
When a district court’s decision is reversed, the mandate will direct
that the appellant recover the original docket fee and any expenses for
transcripts. Rule 7.07(a)(5).
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§ 7.58 Attorney Fees
Appellate courts may award attorney fees for services on appeal in
any case in which the trial court had authority to award attorney fees.
See Rule 7.07(b)(1). See also Snider v. American Family Mut. Ins. Co., 297
Kan. 157, 167-68, 298 P.3d 1120 (2013) (holding that, if a prevailing party
on appeal would be entitled to appellate attorney fees under a statute or
contract, the party must file a motion for appellate attorney fees with
the appellate court under Rule 7.07(b) in order to preserve the right to
those fees). Any motion for attorney fees on appeal must be made under
Rule 5.01. An affidavit specifying the nature and extent of the services
rendered, the time expended on the appeal, and the factors considered in
determining the reasonableness of the fee must be attached to the motion.
See Kansas Rule of Professional Conduct 1.5 Fees; Rule 7.07(b)(2). See
also § 12.34, infra.
PRACTICE NOTE: Many motions for attorney fees
do not include the affidavit required under Rule 7.07(b).
Without it, the appellate court has no information
by which to evaluate the motion and grant an award.
See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan.
601, 617, 124 P.3d 74 (2005) (failure to file motion in
compliance with Rules 5.01 and 7.07 prevents appellate
court from awarding attorney fees).
A motion for attorney fees must be filed with the clerk of the appellate
courts no later than 14 days after oral argument. If oral argument is
waived, the motion must be filed no later than 14 days after either the
date of the waiver or the date of the letter assigning the appeal to a nonargument calendar, whichever is later. Rule 7.07(b)(2).
If the appellate court finds that an appeal has been taken frivolously,
or only for purposes of harassment or delay, it may assess against an
appellant or appellant’s counsel, or both, a reasonable attorney fee for
appellee’s counsel. The mandate will include a statement of any such
assessment, or in an original matter, the clerk of the appellate courts may
cause an execution to issue. Rule 7.07(c).
On its own motion, or on the motion of an aggrieved party filed not
later than 14 days after an assessment of the costs under Rule 7.07, the
appellate court may assess against a party or the party’s counsel, or both,
all or any part of the cost of the trial transcript. To do so, the court must
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find the transcript was prepared as the result of an unreasonable refusal to
stipulate, pursuant to a written request and in accordance with Rule 3.03,
to the preparation of less than a complete transcript of the proceedings
in the district court. Rule 7.07(d).
XIV. MANDATE
§ 7.59 Generally
The mandate is the final, formal order of the appellate court to the
district court, disposing of the judgment of the district court and assessing
costs. It is the judgment of the appellate court but is enforced through
the district court. The clerk of the appellate courts issues the mandate to
the clerk of the district court for filing, accompanied by a certified copy
of the opinion. See K.S.A. 60‑2106(c); Rule 7.03. Copies of the mandate
are not sent to counsel.
§ 7.60 Supreme Court
Mandates from the Supreme Court are issued 7 days after the 21day time period to file a motion for rehearing or modification passes; the
entry of an order denying a motion for rehearing or modification; or any
other event that finally disposes of an appeal. See 7.03(b)(1)(A). If a
motion for rehearing or modification is granted, the mandate is issued in
conjunction with the decision on the rehearing.
§ 7.61 Court of Appeals
Mandates from the Court of Appeals are held for 30 days to allow
for the filing of a motion for rehearing (14‑day time limit under Rule 7.05)
or a petition for review (30-day time limit under Rule 8.03). If a rehearing
is granted, the mandate is held 30 days after the new opinion is filed to
allow for a petition for review. Filing a timely petition for review stays
the issuance of a mandate. Rule 8.03(i). If review is denied, the mandate
issues on the date of denial. Rule 8.03(f). If the petition for review is
granted, the mandate is stayed until the Supreme Court files its opinion
and the time for a motion for rehearing by that court has passed.
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§ 7.62 Stays After Decision
When a party seeks review in the United States Supreme Court, it may
be necessary to stay the decision of the state appellate court to preserve
the status quo or prevent mootness. A motion to stay the issuance of the
mandate should be sought in the court that issued the decision and will be
issuing the mandate. When a petition for review of a Court of Appeals
decision has been denied by the Kansas Supreme Court, the motion for
stay should be addressed to the Court of Appeals.
Ordinarily, a party must seek a stay from the state court before the
United States Supreme Court will entertain an application for a stay. See
United States Supreme Court Rule 23(3). If the stay is granted before the
mandate is issued, the clerk of the appellate courts will hold the mandate.
If the mandate has already been filed with the district court, the appellate
court can enter an order recalling the mandate from the district court in
order to rule on the motion for stay.
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Standards and Scope of Appellate Review
8-
CHAPTER 8
Standards and Scope of
Appellate Review
I.
INTRODUCTION
§ 8.1 Preliminary Matters
Following an appellate court’s determination that it has jurisdiction
over an appeal, the next inquiry is the proper standard of review to be
applied to each issue.
§ 8.2 Standard of Review – Definition
The appellate court’s true standard of review “focuses on the
deference due to a lower court, jury, or agency, and on the materials the
reviewer can look to in performing that oversight function. It broadly
defines the freedom or handcuffs the appellate court carries in passing on
the prior decision makers within the judicial process.” 1 Childress & Davis,
Federal Standards of Review §1.03, p. 1-18 (4th ed. 2010). “In other words,
the standard of review establishes the ‘framework by which a reviewing
court determines whether the trial court erred. [Citation omitted.]’” State
v. Williams, 295 Kan. 506, 510, 286 P.3d 195 (2012).
The standard of review is a concept distinct from the test for
reversibility. See State v. Plummer, 295 Kan. 156, 160, 283 P.3d 202
(2012).
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Standards and Scope of Appellate Review
§ 8.3 Requirements for Appellate Briefs
Under the Kansas Supreme Court Rules, an appellant must begin
each issue with a citation to the appropriate standard of review and a
reference to the specific location in the record on appeal where the issue
was raised and ruled upon. Rule 6.02(a)(5). An appellee also has a duty to
cite to the appropriate standard of review and must either concur in the
appellant’s citation to the standard of review or offer additional authority.
Rule 6.03(a)(4).
§ 8.4 Issues Must be Preserved for Appeal
In an appeal, the record is everything. Any potential error must
be preserved for the record on appeal. The “central premise of error
preservation is simple but of great consequence: if it’s not in the record
developed in the trial court, it did not happen for the purposes of appeal.”
Bratvold and Penny, The Importance of Error Preservation, 53 No. 3 DRI For
the Defense 8 (March 2011). Rule 6.02(a)(5) requires that an appellant’s
brief contain a reference to the specific location in the record on appeal
where each issue on appeal was raised and ruled upon. This requirement
is consistent with the general rule that an appellant cannot raise an issue
on appeal that was not raised below. See In re Care & Treatment of Miller,
289 Kan. 218, 224-25, 210 P.3d 625 (2009) (civil); State v. Leshay, 289 Kan.
546, 553, 213 P.3d 1071 (2009) (criminal).
The rationale for this rule is simple: a trial court cannot wrongly
decide an issue that was never before it. See State v. Williams, 275 Kan.
284, 288, 64 P.3d 353 (2003). There are several exceptions to the rule
that a new legal theory cannot be raised for the first time on appeal. The
appellate courts may consider an issue that was not properly preserved
when: (1) The newly asserted claim involves only a question of law arising
on proved or admitted facts and is finally determinative of the case; (2)
consideration of the claim is necessary to serve the ends of justice or to
prevent the denial of fundamental rights; and (3) the district court is right
for the wrong reason. See In re Estate of Broderick, 286 Kan. 1071, 1082,
191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009) (civil); State v. Gomez,
290 Kan. 858, 862, 235 P.3d 1203 (2010) (criminal).
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§ 8.5 Determining the Appropriate Standard of Review
“Traditionally, decisions by judges are divided into three categories:
questions of law (reviewable de novo), questions of fact (reviewable for
clear error), and discretionary matters (reviewable for abuse of discretion).”
Levy, How to Handle an Appeal, §6:5.2, p. 6-20 (4th ed. 2009). In practice,
the lines between these categories can blur, leading to the application of
several layers of review on a single issue or a case where it is unclear
whether the appellate court is reviewing a question of law or a question
of fact. This fluidity requires the practitioner to make strategic decisions
about how to frame the standard of review.
To assist in understanding the distinctions among various standards
of review, further explanation and examples are provided in §§ 8.7-8.22.
§ 8.6 Practical Considerations
The standard of review is the “single most important factor in the
decision to affirm or reverse in the face of a claim of error that has been
preserved.” Wisotsky, Professional Judgment on Appeal: Bringing and Opposing
Appeals, § 8.02 (2002). The structure of the court system allows the trial
court’s decision to come to the appellate court with a “strong presumption
of correctness” in all issues except for questions of law.
For that reason, determining the appropriate standard of review
can be helpful when considering whether to pursue an appeal. Counsel
for the appellant is in the best position when he or she can focus an
argument on a question of law, which affords de novo review. And both
counsel and client should know that the deference given the trial court on
discretionary matters means that an appeal based solely on those grounds
is unlikely to succeed. Bentele & Cary, Appellate Advocacy Principles and
Practice, pp. 119-120 (4th ed. 2004). Conversely, counsel for the appellee
should always frame an issue in a way that affords the greatest amount of
possible deference to the trial court.
When examining a record for potentially reversible errors, counsel
should take care not to base an appeal around harmless error. Appellate
courts will disregard merely “technical errors” that do not appear to have
prejudicially affected the substantial rights of the party complaining if
the record as a whole reflects that “substantial justice” has been done by
the judgment. State v. Gilliland, 294 Kan. 519, 541, 276 P.3d 165 (2012).
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The degree of certainty required to persuade the court that the error did
not affect the outcome of the trial will vary depending on whether the
error implicates a constitutional right and whether the error was cured or
mitigated by an instruction or admonition. State v. Ward, 292 Kan. 541,
565, 569-70, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
II. DISCUSSION AND EXAMPLES
§ 8.7 Discretionary Issues
The amount and degree of judicial discretion varies depending on
the character of the question presented for determination. In general,
when a discretionary decision is made within the legal standards and takes
the proper factors into account in the proper way, the trial court’s decision
will be protected even if it is not wise. Abuse is found when the trial court
goes outside the framework of legal standards or statutory limitations, or
when it fails to properly consider the factors on that issue given by higher
courts to guide a discretionary determination. In re Adoption of B.G.J., 281
Kan. 552, 563-64, 133 P.3d 1 (2006).
A judicial action constitutes an abuse of discretion if the action (1)
is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or
(3) is based on an error of fact. Critchfield Physical Therapy v. The Taranto
Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011) (civil); State v. Ward,
292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)
(criminal).
One way to determine whether a judicial act is discretionary is to
look at the language of the applicable statute. Statutes typically use the
word “may” to indicate that the decision is discretionary. The following
are examples of statutes granting discretionary authority. “[T]he court
may: (1) Join for hearing any or all matters at issue . . . .” K.S.A. 60-242(a).
“The court may, on motion, grant a new trial . . . .” K.S.A. 60-259(a).
“Attorney fees and related expenses may be awarded . . . .” K.S.A. 793268(f).
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§ 8.8 Factual Issues When Appellant Did Not Have Burden of
Proof
If the appellant was not the party who had the burden of proof on
the issue, the appellate court will apply either the substantial competent
evidence or the sufficiency of evidence standard. Which of these standards
is appropriate depends on whether factual determinations were made by
the trial court or by a jury.
§ 8.9 Substantial Competent Evidence
K.S.A. 60-252(a) mandates that, in cases where the trial court enters
judgment without a jury - such as in a bench trial or upon a summary
judgment motion - the court must “find the facts specially and state its
conclusions of law separately.” The standard of review applied to such
findings of fact is the substantial competent evidence standard. Schoenholz
v. Hinzman, 295 Kan. 786, 792, 289 P.3d 1155 (2012).
“Substantial competent evidence” is both relevant and substantial and
provides a substantial basis of fact from which the issues can reasonably
be resolved. In other words, it is such legal and relevant evidence as a
reasonable person might accept as being sufficient to support a conclusion.
Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011). When reviewing a
trial court, the appellate courts may not weigh conflicting evidence or pass
on the credibility of witnesses or redetermine questions of fact. Mitchell v.
Kansas Dept. of Revenue, 32 Kan. App. 2d 298, 301, 81 P.3d 1258 (2004).
For example, the appellate courts review a district court’s determination
to suspend a driver’s license for substantial competent evidence. Smith v.
Kansas Dept. of Revenue, 291 Kan. 510, 514, 242 P.3d 1179 (2010). Similarly,
the standard is used when reviewing whether a trial court properly denied
a criminal defendant’s motion to suppress a confession, State v. Sharp,
289 Kan. 72, 80, 210 P.3d 590 (2009), and when deciding whether the
Workers Compensation Board of Review’s factual findings were correct.
See K.S.A. 77-621(c)(7).
Often, issues of substantial competent evidence are mixed in with
questions of law. In fact, the question of whether substantial competent
evidence even exists is itself a question of law. Redd v. Kansas Truck Center,
291 Kan. 176, 182, 239 P.3d 66 (2010). When questions of fact and law
intersect, the substantial competent evidence standard is used to review the
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trial court’s factual determinations and any legal conclusions are reviewed
under a de novo standard. When faced with such decisions, practitioners
should pay attention to the precise issue being reviewed within the mixed
question, in order to apply the most advantageous standard of review.
§ 8.10 Sufficiency of the Evidence
The sufficiency of the evidence standard is applied in cases resolved
by a jury trial where factual findings are not made. The standard is stated
differently for civil and criminal cases.
Civil case: “When a verdict is challenged as being contrary to the
evidence, an appellate court does not reweigh the evidence or pass on the
credibility of the witnesses. If the evidence, when considered in the light
most favorable to the prevailing party, supports the verdict, the appellate
court should not intervene.” Unruh v. Purina Mills, 289 Kan. 1185, 1195,
221 P.3d 1130 (2009).
Criminal case: When the sufficiency of evidence is challenged in a
criminal case, the appellate court reviews such claims “by looking at all
the evidence in a light most favorable to the prosecution and determining
whether a rational factfinder could have found the defendant guilty beyond
a reasonable doubt.” State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091
(2012).
This standard also applies to juvenile offender adjudications, In re
B.M.B., 264 Kan. 417, 433, 955 P.2d 1302 (1998), and civil commitment
proceedings, In re Care & Treatment of Ward, 35 Kan. App. 2d 356, 370,
131 P.3d 540, rev. denied 282 Kan. 789 (2006).
§ 8.11 Factual Issues When Appellant Had Burden of Proof
The finding that a party did not meet its burden of proof is a negative
factual finding. The appellate court’s standard of review for a negative
finding of fact is that “the party challenging the finding must prove
arbitrary disregard of undisputed evidence or must prove some extrinsic
consideration such as bias, passion, or prejudice. [Citation omitted.]”
Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008).
Examples of cases where a negative finding was used include: a
finding that the appellant did not prove that he was “incapacitated” under
the workers compensation statutes, Kincade v. Cargill, Inc., 27 Kan. App.
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2d 798, 801, 11 P.3d 63, rev. denied 270 Kan. 898 (2000); a finding that a
party did not prove it was entitled to attorney fees following trial, Midwest
Asphalt Coating v. Chelsea Plaza Homes, 45 Kan. App. 2d 119, 125, 243 P.3d
1106 (2010), rev. denied 292 Kan. 965 (2011); and a finding that the State
failed to prove that certain evidence was derived from a legitimate source
in the face of use and derivative use immunity, State v. Carapezza, 293 Kan.
1071, 1080, 272 P.3d 10 (2012).
§ 8.12 Factual Evidence Undisputed or Based Solely Upon
Documents
In cases decided on the basis of documents and stipulated facts, the
appellate courts have de novo review. Ward v. Ward, 272 Kan. 12, 19, 30
P.3d 1001 (2001).
“Where the controlling facts are based upon written or documentary
evidence by way of pleadings, admissions, depositions, and stipulations,
the trial court has no peculiar opportunity to evaluate the credibility
of witnesses. In such situation, [an appellate court] has as good an
opportunity to examine and consider the evidence as did the court below,
and to determine de novo what the facts establish.” Heiman v. Parrish, 262
Kan. 926, 927, 942 P.2d 631 (1997).
In In re Adoption of Baby Boy B., 254 Kan. 454, Syl. ¶ 2, 866 P.2d
1029 (1994), the Kansas Supreme Court clarified that where there is
“conflicting written testimony and the [appellate] court is called upon to
disregard the testimony of one witness and accept as true the testimony
of the other,” the standard of review is “whether the findings of the
district court are supported by substantial competent evidence.” This
standard of review only applies to cases where the documentary evidence
is uncontroverted.
§ 8.13 Legal Issues
The scope of review for questions of law is unlimited. See Kingsley
v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). This
may also be referred to as “de novo” or “plenary” review. Examples of
cases where de novo review was used include:
Contract interpretation: “The legal effect of a written instrument
is a question of law. It may be construed and its legal effect determined
by the appellate court regardless of the construction made by the district
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court. [Citation omitted.]” Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d
888 (2011).
Existence of a duty: “The existence of a legal duty is a question
of law to be determined by the court. Appellate courts have unlimited
review of questions of law.” D.W. v. Bliss, 279 Kan. 726, Syl. ¶ 2, 112 P.3d
232 (2005).
Jurisdiction: Whether jurisdiction exists is a question of law over
which the appellate court’s scope of review is unlimited. Associated
Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 637, 270 P.3d
1074 (2011) (civil); State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105
(2009), cert. denied 130 S. Ct. 3410 (2010) (criminal).
Legal Conclusions: An appellate court has de novo review of legal
conclusions upon which a trial court’s decision is based. The trial court’s
factual findings must be supported by substantial competent evidence
and must be sufficient to support the legal conclusions dependent upon
them. Venters v. Sellers, 293 Kan. 87, Syl. ¶ 1, 261 P.3d 538 (2011).
Statutory interpretation: Interpretation of a statute is a question of
law over which appellate courts have unlimited review. Unruh v. Purina
Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009) (civil); State v. Dale, 293
Kan. 660, 662, 267 P.3d 743 (2011) (criminal).
III. PARTICULAR TOPICS OR AREAS OF LAW
§ 8.14 Administrative Actions – State Agencies
Judicial review of a state administrative agency action is defined by the
Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. It is important
to note that there were extensive amendments to the KJRA in 2009. Read
carefully if citing an appellate case from before the amendments were
effective. It is also important to note that the 2009 statutory changes
do not apply retroactively. They should be used only for agency actions
arising on or after July 1, 2009. K.S.A. 77-621(a)(2); Redd v. Kansas Truck
Center, 291 Kan. 176, ¶ Syl. 1, 239 P.3d 66 (2010).
The KJRA defines eight issues that a court can review. K.S.A. 77621(c). The burden of proving the invalidity of agency action is on the
party asserting invalidity. K.S.A. 77-621(a)(1).
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Appellate courts exercise the same statutorily limited review of the
agency’s action as does the district court, as though the appeal had been
made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290
Kan. 564, 567, 232 P.3d 856 (2010).
Appellate courts review an agency’s factual findings to determine
whether they are supported by substantial competent evidence in light
of the record as a whole. K.S.A. 77-621(c)(7). The 2009 amendments
to the KJRA alter that analysis in three ways. First, the appellate court
must review the evidence both supporting and contradicting the agency’s
findings. Second, the court must consider the presiding officer’s
determination of witness credibility. And third, the court must review the
agency’s explanation of why the evidence supports its findings. Despite
these changes, the appellate court is still precluded from reweighing the
evidence or engaging in de novo review. K.S.A. 77-621(d); Gustin v. Payless
Shoesource, Inc., 46 Kan. App. 2d 87, 92, 257 P.3d 1277 (2011).
Appellate court review of an agency’s interpretation of a statute that
the agency administers has also changed. Historically, the courts have
given substantial deference to the agency’s statutory interpretation -- this
was sometimes referred to as the “doctrine of operative construction.”
More recently, the Kansas Supreme Court has indicated an unwillingness
to extend any deference to an agency’s statutory interpretation, instead
preferring to exercise de novo review. In re Tax Appeal of LaFarge Midwest,
293 Kan. 1039, 1044, 271 P.3d 732 (2012). Appellate cases citing the
doctrine of operative construction should no longer be cited for issues
involving statutory interpretation in administrative cases.
§ 8.15 Administrative Actions – Non-state Agencies
If the administrative decision was made by a non-state agency, the
appropriate standard of review depends on whether the agency is acting
in a legislative or quasi-judicial capacity. K.S.A. 60-2101(d) authorizes an
appeal to the district court from any “judgment rendered or final order
made by a political or taxing subdivision, or any agency thereof, exercising
judicial or quasi-judicial functions.”
Judicial review of judicial or quasi-judicial functions is limited to
determining whether the government body acted within the scope of its
authority, whether the decision was substantially supported by evidence,
or whether the decision was fraudulent, arbitrary, or capricious. Robinson
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v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 270, 241 P.3d 15
(2010).
If the non-state agency was acting in a legislative capacity, the review
by the district and the appellate court is limited to determining whether
the agency had the statutory authority to issue the order that it made.
Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 249 Kan. 149,
156, 815 P.2d 492 (1991).
However, the standard of review in zoning cases is slightly different.
See McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan.
303, 304-05, 40 P.3d 522 (2002).
§ 8.16 Cumulative Error
Cumulative trial errors, when considered collectively, may require
reversal of a defendant’s conviction when the totality of the circumstances
substantially prejudiced the defendant and denied him a fair trial. If the
evidence is overwhelming against the defendant, however, no prejudicial
error may be found based upon the cumulative error rule. Thompson v.
State, 293 Kan. 704, 721, 270 P.3d 1089 (2011).
§ 8.17 Ineffective Assistance of Counsel
“A claim of ineffective assistance of counsel presents mixed
questions of law and fact requiring de novo review. [Citation omitted.]”
Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). The appellate
court “reviews the underlying factual findings for substantial competent
evidence and the legal conclusions based on those facts de novo. [Citation
omitted.]” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
§ 8.18 Jury Instructions
The standard of review for an issue involving jury instructions varies
depending on whether the instruction in question was either requested or
objected to during trial. There are also slight differences depending on
whether the case is civil or criminal.
CIVIL INSTRUCTION RAISED TO TRIAL COURT
The trial court must properly instruct the jury on a party’s theory
of the case. Errors regarding jury instructions will not require reversal
unless they result in prejudice to the appealing party. Instructions must
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be considered together and read as a whole, and where they fairly instruct
the jury on the law governing the case, error in an isolated instruction
may be disregarded as harmless. If the instructions are substantially
correct and the jury could not reasonably have been misled by them, the
instructions will be approved on appeal. Manhattan Ice & Cold Storage v.
City of Manhattan, 294 Kan. 60, 81, 274 P.3d 609 (2012).
CRIMINAL INSTRUCTION RAISED TO TRIAL COURT
When a party has objected to an instruction at trial, the appellate court
will examine the instruction to determine if it properly and fairly states
the law as applied to the facts of the case and could not have reasonably
misled the jury. In making this determination, the appellate court must
consider the instructions as a whole and not isolate any one instruction.
State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
When a party has requested an instruction at trial and that request has
been denied, the appellate court will first determine whether the requested
instruction was legally and factually appropriate. If the instruction was
legally and factually appropriate, the appellate court will find error, but
will then review the record to determine whether the failure to give the
instruction was harmless. State v. Plummer, 295 Kan. 156, 160-63, 283 P.3d
202 (2012).
CIVIL INSTRUCTION NOT RAISED TO TRIAL COURT
The failure to object to a jury instruction invokes a clearly erroneous
standard of review. To reverse, the appellate court must be able to find a
real possibility exists that the jury would have returned a different verdict
had the trial error not occurred. Unruh v. Purina Mills, 289 Kan. 1185,
1197, 221 P.3d 1130 (2009).
CRIMINAL INSTRUCTION NOT RAISED TO TRIAL
COURT
When reviewing a jury instruction in this context, the appellate court
must first determine whether there is error. In other words, the appellate
court must perform a merits review of the issue. This review for error
presents a legal question subject to de novo review. State v. Williams, 295
Kan. 506, 515-16, 286 P.3d 195 (2012) (discussing “clearly erroneous”
standard set out in K.S.A. 22-3414[3]).
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Only after the appellate court determines that the trial court erred
by giving or failing to give a particular instruction does the court inquire
into reversibility. The test for clear error requiring reversal is whether the
reviewing court is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred. This assessment
involves a review of the entire record and de novo review. The defendant
bears the burden of proving clear error. State v. Williams, 295 Kan. at
516.
§ 8.19 Motions to Dismiss – Civil
The granting of a motion to dismiss is not favored by courts.
When reviewing a trial court’s decision granting a motion to dismiss, the
appellate court must assume that the facts alleged by the plaintiff are
true and make any reasonable inferences to be drawn from those facts.
Additionally, the court is required to determine whether those pleaded
facts and inferences state a claim, not only on the theory espoused by the
plaintiff, but on any possible theory that can be ascertained. Dismissal
is justified only when the allegations in the petition clearly show plaintiff
has not stated a claim. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140
(2001). The standard of review is different when the decision is entered
during a bench trial prior to the conclusion of trial. When a trial court
has ruled on a motion for judgment on partial findings under K.S.A. 60252(c), the appellate court determines whether the trial court’s findings of
fact are supported by substantial competent evidence and are sufficient
to support its conclusions of law. Lyons v. Holder, 38 Kan. App. 2d 131,
134-35, 163 P.3d 343 (2007).
§ 8.20 Motions to Dismiss – Criminal
The test used to evaluate the sufficiency of a charging document
depends upon whether the issue was raised before the trial court. If the
issue was raised to the trial court, via the filing of a motion for arrest
of judgment, the appellate court considers whether the complaint or
information omits an essential element of the crime. If so, it is fatally
defective, and the conviction must be reversed for lack of jurisdiction.
State v. Shirley, 277 Kan. 659, 661-62, 89 P.3d 649 (2004). If the issue
is being raised for the first time on appeal, the appellate court applies a
“common-sense rule under which a charging document is sufficient if
it would be fair to require the defendant to defend on the stated charge,
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even if an essential element is missing from the document. [Citation
omitted.]” In making such a determination, the reviewing court looks at
the entire record. State v. Edwards, 39 Kan. App. 2d 300, 308, 179 P.3d
472, rev. denied 286 Kan. 1181 (2008).
§ 8.21 Prosecutorial Misconduct
Appellate review of an allegation of prosecutorial misconduct
involving improper comments to the jury requires a two-step analysis.
First, the court determines whether the prosecutor’s comments were
outside the wide latitude that a prosecutor is allowed in discussing the
evidence. Second, if misconduct is found, the appellate court must
determine whether the improper comments prejudiced the jury against
the defendant and denied him or her a fair trial. State v. Bridges, 297 Kan.
989, 306 P.3d 244, 260 (2013); State v. Marshall, 294 Kan. 850, 856, 281
P.3d 1112 (2012).
In the second step of the analysis, the appellate court considers
whether the misconduct was gross and flagrant, whether it was motivated
by prosecutorial ill will, and whether the evidence was of such an
overwhelming nature that the misconduct would likely have had little
weight in the minds of jurors. None of these three factors is individually
controlling. State v. Marshall, 294 Kan. at 857. The ultimate question in the
second part of the analysis is whether the prosecutorial misconduct was
harmless under the standards of both K.S.A. 60-261 (statutory harmless
error) and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967) (constitutional harmless error). See
State v. Bridges, 2013 WL 4039431, at *17, 19.
A claim of prosecutorial misconduct based on comments made
during voir dire or opening or closing statements may be reviewed on
appeal even in the absence of a contemporaneous objection. In contrast,
a contemporaneous objection must be made to all evidentiary claims - including questions posed by a prosecutor -- to preserve the issue for
appellate review. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).
PRACTICE NOTE: Although a contemporaneous
objection is not necessary to preserve a claim of
prosecutorial misconduct during voir dire, opening
statements, or closing arguments, the failure to object
may impair the appellant’s ability to argue on appeal that
the misconduct constituted reversible error.
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§ 8.22 Summary Judgment
“‘Summary judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. The
district court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom
the ruling is sought. When opposing a motion for summary judgment,
an adverse party must come forward with evidence to establish a dispute
as to a material fact. In order to preclude summary judgment, the facts
subject to the dispute must be material to the conclusive issues in the
case.’ [Citation omitted.]” O’Brien v. Leegin Creative Leather Products, Inc., 294
Kan. 318, 330, 277 P.3d 1062 (2012).
On appeal, the same rules apply; summary judgment must be denied
if reasonable minds could differ as to the conclusions drawn from the
evidence. Where there is no factual dispute, appellate review of an order
regarding summary judgment is de novo. David v. Hett, 293 Kan. 679, 682,
270 P.3d 1102 (2011).
§ 8.23 Termination of Parental Rights
The State must prove by “clear and convincing evidence” that a
child is a child in need of care. K.S.A. 38-2250. “Clear and convincing
evidence” is an intermediate standard of proof between a preponderance
of the evidence and beyond a reasonable doubt. In re B.D.-Y., 286 Kan.
686, 691, 187 P.3d 594 (2008). “Clear and convincing evidence is evidence
which shows that the truth of the facts asserted is highly probable.” In re
B.D.-Y., 286 Kan. 686, Syl. ¶ 3.
IV. NO APPELLATE REVIEW
§ 8.24 Acquiescence
Acquiescence to a judgment cuts off the right of appellate review.
Acquiescence occurs when a party voluntarily complies with a judgment
by assuming the burdens or accepting the benefits of the judgment
contested on appeal. A party that voluntarily complies with a judgment
should not be permitted to take an inconsistent position by appealing
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that judgment. With that in mind, the question of whether a party has
acquiesced to a judgment is a matter of jurisdiction. Accordingly, that
question is reviewed de novo. Alliance Mortgage Co. v. Pastine, 281 Kan.
1266, 1271, 136 P.3d 457 (2006).
§ 8.25 Invited Error
A party may not invite and lead a trial court into error and then
complain of the trial court’s error on appeal. Butler County R.W.D. No. 8
v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (civil); State v. Divine, 291
Kan. 738, 742, 246 P.3d 692 (2011) (criminal).
Because issue of jurisdiction may be raised by an appellate court at
any time and upon the court’s own motion, the invited error rule does not
apply to issues of jurisdiction. In re Tax Appeal of Professional Engineering
Consultants, 281 Kan. 633, 639, 134 P.3d 661 (2006). Similarly, where a
defendant challenges an illegal sentence on the ground that the sentencing
court lacked jurisdiction, the invited error rule does not apply. State v.
McCarley, 287 Kan. 167, 174-76, 195 P.3d 230 (2008).
§ 8.26 Moot Issues
The general rule is appellate courts do not decide moot questions or
render advisory opinions. Smith v. Martens, 279 Kan. 242, 244, 106 P.3d
28 (2005) (civil); State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012)
(criminal).
§ 8.27 Correct Ruling for Erroneous Reason
If a trial court reaches the correct result, its decision will be upheld
even though it relied upon the wrong ground or assigned erroneous
reasons for its decision. Hockett v. The Trees Oil Co., 292 Kan. 213, 218,
251 P.3d 65 (2011) (civil); State v. May, 293 Kan. 858, 870, 269 P.3d 1260
(2012) (criminal).
§ 8.28 Abandoned Points
An issue not briefed by the appellant is deemed waived and abandoned.
Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011)
(civil); State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (criminal).
This rule encompasses an issue which is raised incidentally in a brief but
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not fully argued. Manhattan Ice & Cold Storage v. City of Manhattan, 294
Kan. 60, 71, 274 P.3d 609 (2012) (civil); State v. Anderson, 291 Kan. 849,
858, 249 P.3d 425 (2011) (criminal).
§ 8.29 Failure to Designate a Record
The burden is on the party making a claim to designate facts in the
record to support that claim; without such a record, the claim of error
fails. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247,
283, 225 P.3d 707 (2010) (civil); State v. McCullough, 293 Kan. 970, 999, 270
P.3d 1142 (2012) (criminal).
V. SUMMARY
The above standards of review are not an exhaustive list but should
assist the parties in deciding how to address an issue. The parties should
research the applicable area of law to determine if a different standard
can be used for an issue, based upon the particular facts of the case. In
many instances, there are exceptions to the above rules.
In conclusion, the appellant should choose an issue that shows the
alleged error warrants reversal of the case and cite to the record where the
error was raised to the trial court. Thereafter, the parties should state the
proper standard of review and weave it into their arguments. By doing so,
the parties’ arguments and the appellate court’s review of the case will be
properly focused on how the appellate court can grant/deny relief within
the limitations of its authority.
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CHAPTER 9
Brief Writing
This chapter addresses the rules governing the filing of briefs with
the appellate courts and provides suggestions for crafting an effective
brief.
Consult the appropriate rules before starting to format your appellate
brief, and review the “Brief Checklist” in Chapter 12, § 12.35, infra.
The rules are found in the Kansas Court Rules Annotated, an annual
publication of the Kansas Supreme Court. Check the rules online to
determine whether there have been any recent amendments. http://www.
kscourts.org/rules/New_Rules_and_Amendments.
§ 9.1 Time Schedule for Briefs–Rule 6.01
Computation of Time
K.S.A. 60-206(a) and (d) address how to compute time for the
purpose of determining a brief due date. For a more detailed discussion
of time computation, see § 7.9, supra.
PRACTICE NOTE: When a brief due date is counted
from a prior service date, the appellate clerk’s office will
add the three-day mail time if service has been perfected
under K.S.A. 60-206(d).
Appellant’s Brief
If no transcripts were ordered or if all transcripts ordered were filed
with the clerk of the district court before docketing, an appellant’s brief
is due within 40 days of the date of docketing. Rule 6.01(b)(1)(A).
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If a transcript was ordered but was not filed prior to docketing, an
appellant’s brief is due within 30 days of service of the certificate of filing
of the requested transcript. Rule 6.01(b)(1)(B).
If the record on appeal includes a statement of proceedings under
Rule 3.04 or an agreed statement under Rule 3.05, an appellant’s brief is
due within 30 days after the filing of the statement with the district court.
Rule 6.01(b)(1)(C).
Appellee’s Brief or Appellee/Cross-Appellant’s Brief
The brief of an appellee or an appellee/cross-appellant is due within
30 days after service of the appellant’s brief. Rule 6.01(b)(2).
Cross-Appellee’s Brief
The brief of a cross-appellee is due within 21 days after service of
the cross-appellant’s brief. Rule 6.01(b)(3).
Appellee/Cross-Appellee’s Brief
The brief of an appellee/cross-appellee is due within 21 days after
service of the appellee/cross-appellant’s brief. Rule 6.01(b)(4).
Reply Brief
A reply brief is due within 14 days after service of the brief to which
the reply is made. Rule 6.01(b)(5).
Rule 6.05 explains when a reply brief may be submitted and what a
reply brief must contain.
PRACTICE NOTE: A reply brief that is bound with
a cross-appellee brief would be due 21 days after service
of the appellee/cross-appellant’s brief.
Extensions of Time
K.S.A. 60-206(b) addresses the extension, by the court, of the time
to file a brief. See also Rule 5.02 and § 7.30, supra.
§ 9.2 Content of Appellant’s Brief–Rule 6.02
An appellant’s brief must contain:
▪ A table of contents that includes page references to each
division and subdivision in the brief and the authorities
relied upon. Rule 6.02(a)(1).
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▪ A brief statement of the nature of the case and the nature
of the judgment or order from which the appeal is taken.
Rule 6.02(a)(2).
▪ A brief statement of the issues to be decided on appeal.
Rule 6.02(a)(3).
PRACTICE NOTE: Rule 6.02(a)(3) specifies that
this statement must be brief and without elaboration.
Because the court will read the statement of the issues
before reading the facts of the case, an elaborate issue
statement may confuse, rather than clarify. Moreover,
the court has only two options when faced with a
lengthy issue statement: to read it or to skip it. If it
chooses the former, a lengthy issue statement will likely
render some of the following argument redundant. If
it chooses the latter, the lengthy issue statement has only
wasted precious space.
▪ A concise but complete statement, without argument, of
the facts that are material to determining the issues to be
decided in the appeal. The facts must be keyed to the record
on appeal by volume and page number. For example, (R.
I, 23). The court may presume that any factual statement
made without such a reference has no support in the record
on appeal. Rule 6.02(a)(4). See In re Care & Treatment of
Hay, 263 Kan. 822, 835, 953 P.2d 666 (1998).
PRACTICE NOTE: Under Rule 3.02, the clerk of the
district court furnishes a copy of the table of contents
of the record on appeal to each party. That table of
contents shows the volume and page number of each
document in the record; all parties should cite to it.
Contact the district court clerk if you are writing a brief
and have not received a copy of the table of contents.
This section must include all of the material facts and only the
material facts. Avoid statements such as, “Further facts will
be developed as necessary.” Also avoid setting up an issue
that will not be raised. For instance, if the brief will not
include an argument that the district court erred in denying
a motion to suppress, including facts about the motion
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and the hearing on the motion in the statement of facts
serves only as a distraction. Finally, include – but minimize
– negative critical facts. Rambo and Pflaum, Legal Writing by
Design § 21.6, p. 371 (2001).
▪ The arguments and authorities relied on, separated by
issue if applicable. Each issue must begin with a citation to
the appropriate standard of review. Each issue must begin
with a pinpoint reference to the location in the record on
appeal where the issue was raised and ruled on or, if the
issue was not raised below, an explanation why the issue
is properly before the court. Rule 6.01(a)(5). “Issues not
raised before the district court generally cannot be raised on
appeal. Exceptions may be granted if: (1) the newly asserted
theory involves only a question of law arising on proved or
admitted facts and is finally determinative of the case; (2)
consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights; or (3) the
district court’s judgment may be upheld on appeal despite its
reliance on the wrong ground.” State v. Foster, 290 Kan. 696,
702, 233 P.3d 265 (2010). The appellant must identify which
of these exceptions applies and why it is applicable. State v.
J.D.H., 48 Kan. App. 2d 454, 459, 294 P.3d 343 (2013).
PRACTICE NOTE: When it comes to authorities,
choose quality over quantity. String cites are almost
always unnecessary. Berry, Effective Appellate Advocacy:
Brief Writing and Oral Argument, p. 122 (4th ed. 2009).
An appellant’s brief may contain:
▪ An appendix – without comment – consisting of limited
extracts from the record on appeal that are critical to
the issues to be decided. The appendix is for the court’s
convenience and is not a substitute for the record itself.
It is inappropriate to attach as an appendix any item that
is not a part of the record on appeal. See Haddock v. State,
282 Kan. 475, Syl. ¶ 21, 146 P.3d 187 (2006) (“An appendix
to an appellate brief is not a substitute for the record on
appeal, and material so attached will not be considered by
this court.”) The brief may make reference to the appendix,
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but must also include the required reference to the volume
and page number of the record on appeal. Rule 6.02(b).
§ 9.3 Content of Appellee’s Brief–Rule 6.03
An appellee’s brief must contain:
▪ A table of contents that includes page references to each
division and subdivision and the authorities relied upon.
Rule 6.03(a)(1).
▪ A statement either concurring in the appellant’s statement of
the issues involved or stating the issues the appellee considers
necessary to disposition of the appeal. Rule 6.03(a)(2).
▪ A statement, without argument, of the facts or a statement
concurring with the appellant’s statement of facts, including
corrections or additions if necessary. The facts must be
keyed to the record on appeal by volume and page number.
The court may presume that any factual statement made
without such a reference has no support in the record on
appeal. Rule 6.02(a)(4); Rule 6.03(a)(3).
▪ The arguments and authorities relied on, separated by issue
if applicable. Each issue must begin with a citation to the
appropriate standard of review. Appellee must either concur
with the appellant’s suggested standard of review or cite
authority to the contrary. Rule 6.03(a)(4).
If the appellee is also a cross-appellant, the brief must also contain:
▪ A separate section for the cross-appeal, including content
similar to the content required for an appellant’s brief under
Rule 6.02. This section should avoid duplicating statements,
arguments, or authorities contained elsewhere in appellee’s
brief. To avoid such duplication, the appellee may make
references to the appropriate portions of its brief. Rule
6.03(a)(5).
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An appellee’s brief may contain:
▪ An appendix – without comment – consisting of limited
extracts from the record on appeal that are critical to
the issues to be decided. The appendix is for the court’s
convenience and is not a substitute for the record itself. It is
inappropriate to attach as an appendix any item that is not a
part of the record on appeal. The brief may make reference
to the appendix but must also include the required reference
to the volume and page number of the record on appeal.
Rule 6.02(b); Rule 6.03(b).
§ 9.4 Content of Cross-Appellee’s Brief–Rule 6.04
A cross-appellee’s brief must contain:
▪ Content similar to the content required for an appellee’s
brief under Rule 6.03. The brief should avoid duplicating
statements, arguments, or authorities contained in the
brief of the appellant or cross-appellant. To avoid such
duplication, the cross-appellee may make references to the
appropriate portions of the opposing brief. Rule 6.04.
§ 9.5 Reply Brief–Rule 6.05
Rule 6.05 permits the filing of a reply brief only when made necessary by
new material contained in the brief of the appellee or the cross-appellee.
If a reply brief is appropriate, it must include a specific reference to
the new material being rebutted and be combined with the cross-appellee’s
brief in a separate section if filed by a cross-appellee. Rule 6.05.
A reply brief may not include any statements, arguments, or authorities
already included in a preceding brief, except by reference. Rule 6.05.
PRACTICE NOTE: The party filing the reply brief
may not use the reply brief to raise additional issues.
State v. McCullough, 293 Kan. 970, 984-85, 270 P. 3d 1142
(2012).
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§ 9.6 Brief of Amicus Curiae–Rule 6.06
A brief of an amicus curiae may only be filed when the party filing the
brief serves an application to file the brief on all parties and files it with
the clerk of the appellate courts and the appellate court enters an order
granting that application. Rule 6.06(a).
PRACTICE NOTE: The application to file an amicus
brief should state substantial reasons supporting the
request and be filed as early in the appellate process as
possible.
The brief must be filed at least 30 days before oral argument and
served on all parties. Rule 6.06(b). A party may respond to the brief
within 21 days of the filing of the brief. Rule 6.06(c).
An amicus curiae is not entitled to oral argument. Rule 6.06(d).
§ 9.7 Format for Briefs--Rule 6.07
A brief that does not conform substantially with the provisions of
Rule 6.07 will not be accepted for filing. Rule 6.07(g). See § 12.36, infra,
for a sample brief.
The brief must be printed on 8½” by 11” white bond paper. Rule
6.07(a)(1). The brief must be reproduced by a process that yields a clear
black image on white paper. The paper must be opaque and unglazed.
Only one side of the paper may be used. Rule 6.07(a)(5).
The color of the brief cover must correspond to the party filing the
brief:
▪ Appellant — yellow.
▪ Appellee, appellee/cross-appellant, or appellee/crossappellee — blue.
▪ Cross-appellee or cross-appellee/reply — yellow.
▪ Intervenor or amicus curiae — green.
▪ Reply — grey. Rule 6.07(b)(1).
The cover of the brief must include:
▪ The appellate court docket number.
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▪ The words “IN THE COURT OF APPEALS OF
THE STATE OF KANSAS” or “IN THE SUPREME
COURT OF THE STATE OF KANSAS,” whichever is
appropriate.
▪ The caption of the case as it appeared in the district court,
except that a party must be identified not only as a plaintiff
or defendant but also as an appellant or appellee. ▪ The title of the document, e.g., “Brief of Appellant” or
“Brief of Appellee,” etc.
▪ The words “Appeal from the District Court of
_____________ County, Honorable ________________
__________, Judge, District Court Case No. _______”.
▪ The name, address, telephone number, fax number, e-mail
address, and attorney registration number of one attorney
for each party on whose behalf the brief is submitted.
An attorney may be shown as being of a named firm.
Additional attorneys joining in the brief must not be shown
on the cover but may be added at the conclusion of the
brief.
▪ The words “oral argument” on the lower right portion
of the brief cover, followed by the desired amount of
time, if additional time for oral argument is requested in
the Supreme Court under Rule 7.01(e) or in the Court of
Appeals under Rule 7.02(f). Rule 6.07(b)(2).
The brief must not exceed the following page limits, excluding the
cover, table of contents, appendix, and certificate of service, unless the
court orders otherwise:
▪ Brief of an appellant — 50 pages.
▪ Brief of an appellee — 50 pages.
▪ Brief of an appellee and cross-appellant — 60 pages.
▪ Brief of an appellee and cross-appellee — 60 pages.
▪ Brief of a cross-appellee — 25 pages.
▪ Reply brief — 15 pages.
▪ Brief of an amicus curiae — 15 pages. Rule 6.07(d).
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Any motion to exceed these page limitations must be submitted before
submission of the brief and must include a specific total page request.
The court may rule on the motion without waiting for a response from
any other party. Rule 6.07(e). The appellate court hearing a matter may
order briefs to be abbreviated in content or format. Rule 6.07(f).
The text must be in black type or print in a conventional-style font
at least 12-point. Rule 6.07(a)(1) and (a)(2).
Text must be double-spaced except block quotations and footnotes,
which may be single-spaced. The text must not exceed six inches by nine
inches, excluding page numbers. Rule 6.07(a)(2).
The margins must be at least 1 ½ inches on the left, and at least 1
inch on the top, bottom and right. Rule 6.07(a)(3).
PRACTICE NOTE: Cheating on font size, margins,
and spacing in order to comply with the page limits
“‘tells the judges that the lawyer is the type of sleazeball
who is willing to cheat on a small procedural rule and
therefore probably will lie about the record or forget
to cite controlling authority.’” Rambo and Pflaum, Legal
Writing by Design § 20.3, p. 344 (2001) (quoting Judge
Alex Kozinski, The Wrong Stuff, 1992 B.Y.U. L. Rev. 325
at 327).
Footnotes should be avoided. If they are absolutely necessary, each
footnote must begin on the same page as the text to which it relates. Rule
6.07(a)(4).
Binding
▪ If a brief exceeds 15 pages, at least 10 of the required 16
copies must be assembled with full-length spiral binders
on the left side.
▪ The remaining copies (and briefs not exceeding 15 pages)
may be fastened together by staples or brads. Rule
6.07(c).
Filing of E-brief on CD-ROM
▪ Parties and amici curiae may and are encouraged to submit
briefs on a CD-ROM disk (an e-brief) in addition to
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submitting the requisite number of printed briefs required
by Rule 6.09.
▪ An e-brief must comply with the current technical
specifications available from the clerk of the appellate
courts or posted at www.kscourts.org. An e-brief must
be identical in content and format — including page
numbering — to the printed version, except that an ebrief also may provide electronic links (hyperlinks) to the
complete text of any authority cited in the brief and to
any document or other material included in the record on
appeal.
▪ An e-brief must be accompanied by a statement that
verifies the absence of computer viruses and describes the
software used to ensure that the e-brief is virus-free.
▪ If an e-brief is filed under this subsection, not fewer than
5 CD-ROM disks of the brief must be filed, with proof of
service of at least one disk on each party to the appeal.
▪ An e-brief, if filed, must accompany printed copies of the
brief. Rule 6.07(h).
§ 9.8 Reference within Brief–Rule 6.08
Unless the context particularly requires a distinction between parties
as appellant or appellee, refer to the parties in the body of a brief by their
status in the district court, e.g., plaintiff, defendant, etc., or by name. Rule
6.08.
PRACTICE NOTE: Referring to a client by name
can help humanize him or her. Be consistent. It is
acceptable to refer to a party by full name the first time
and by last name thereafter, but do not switch back and
forth.
Citation of a court decision must be by the official citation followed
by any generally recognized reporter system citation. Rule 6.08.
PRACTICE NOTE: Include a pin cite to a specific
page or pages. Rule 7.04(g) allows the citation of
unpublished opinions in specific circumstances but
requires attachment of a printed copy of the opinion.
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§ 9.9 Service of Brief and Additional Authority–Rule 6.09
The party filing the brief must:
▪ Include a certificate of service as the last page of the
brief.
▪ Serve two copies of the brief on all adverse parties united
in interest.
▪ File 16 copies - simultaneously with service – with the
clerk of the appellate courts. Rule 6.09(a).
Additional Authority
A party may file a letter advising the court of additional persuasive
or controlling authority that has come to the party’s attention since filing
its last brief. The party must file the letter at least 14 days before oral
argument or before the first day of the docket on which a no-argument
case is set unless (1) the authority is published or filed less than 14 days
before oral argument or less than 14 days before the first day of the
docket on which a no-argument case is set, in which case the party must
promptly advise the court, by letter, of the citation, or (2) the authority
was published or filed after oral argument or after the first day of the
docket on which a no-argument case was set but before the court issues a
decision. Rule 6.09(b)(1).
The body of the letter must not exceed 350 words. The letter may not
be split into multiple filings to avoid the word limitation. The letter must
contain a reference to the page(s) of the brief the letter supplements or a
point argued orally to which the citation pertains. The letter may contain
a brief statement concerning application of the citation. 6.09(b)(1)(C).
The party filing the letter must serve all adverse parties united in
interest with a copy and file the letter and sixteen copies, with proof of
service, with the clerk of the appellate courts. Rule 6.09(b)(2).
A party may respond to a letter notifying the court of additional
authority. The party must file the response with the clerk of the appellate
courts within 7 days after service of the letter; limit the letter to the
reference, brief statement, and 350-word limit under Rule 6.09(b)(1)(C);
and serve the response on all adverse parties united in interest. Rule
6.09(b)(3).
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§ 9.10Brief in Criminal or Postconviction Case–Rule 6.10
In a criminal matter or postconviction case, each party filing a brief
must serve the Attorney General of Kansas with a copy of the brief.
No officer or agent of the State may file a brief by or on behalf of the
State unless the approval of the Attorney General or a member of the
Attorney General’s staff is endorsed on the brief. Rule 6.10.
PRACTICE NOTE: The Attorney General’s approval
is not required for juvenile offender appeals.
§ 9.11 Some Tips for Crafting an Effective Brief
Selecting and Organizing Issues:
Include only the issues most likely to succeed; “[w]eak points dilute
strong ones.” Berry, Effective Appellate Advocacy: Brief Writing and Oral
Argument, p. 85 (4th ed. 2009).
Organize the issues in a way that makes sense. For instance, begin
with the strongest argument, or arrange the issues in the order in which
the errors occurred below if the relative strength of the arguments is
similar.
Separating issues into sub-issues and sub sub-issues is a helpful way
of organizing the arguments section. For instance, each issue might
have four main subheadings: Introduction, Standard of Review and
Preservation of the Issue, Analysis, and Conclusion. The “Standard
of Review and Preservation of the Issue” subsection might have two
subsections: one addressing the appropriate standard of review and
one addressing where, in the record on appeal, the issue was raised and
ruled on or, in the alternative, why the court should consider it despite
the fact that it was not raised below. The “Analysis” section might have
several subsections addressing the different parts of a multi-part test or
separately addressing (1) why an action constituted error, and (2) why the
error requires reversal.
Writing the Statement of Facts:
“The facts must be scrupulously accurate.” Berry at p. 109.
It may be helpful to write the Arguments and Authorities section
first. Then include any and all facts necessary to support the arguments
made in that section in the Statement of Facts.
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Organize the facts in a way that makes sense, i.e., chronologically or
in the same order as the issues to which they relate.
Use subheadings where necessary, i.e., “The Crime,” “Pre-Trial
Motions,” “Trial,” “Sentencing.”
PRACTICE TIP: Avoid simply relaying each witness’s
testimony in the order in which the witnesses appeared.
Garner, The Winning Brief pp. 365-67 (2nd ed. 2004). Make
sure the testimony fits together to tell a story. Highlight
inconsistencies between different witnesses’ testimony
using words like “however” and “although.” Highlight
corroborating testimony with words like “similarly.”
While the statement of facts may not include argument, the tone
of this section can lay the groundwork for the argument that follows.
For instance, rather than simply stating, “The district court denied the
defendant’s request to proceed pro se,” consider writing, “The district
court mocked the defendant’s request to proceed pro se and chastised him
for ‘wasting everyone’s time.’” Rambo and Pflaum, Legal Writing by Design
§ 21.6, p. 368 (2001). Within the confines of the rule, this section is an
opportunity to soften the ground for, and plant the seeds of, the argument
that will follow. Avoid overreaching, however; including statements in the
statement of facts section that have no support in the record on appeal
erodes the court’s credibility in the writer. “We never, either through act
or omission, misrepresent the truth.” Rambo and Pflaum at 359.
While active voice is generally preferable to passive voice, passive
voice may be appropriate where it minimizes a client’s misdeeds. For
example, rather than writing, “Mr. Jones beheaded Smith,” consider
writing, “Smith was beheaded.” Rambo and Pflaum at 368.
Standard of Review and Preservation of the Issue:
Argue for the most favorable standard of review the law supports,
but cite authority to the contrary if it exists.
PRACTICE NOTE: Do not be afraid to argue what
the standard of review ought to be if it should be changed,
but also note what the standard of review currently is.
Include reference to where the issue was raised and ruled upon below.
If the issue was not raised and ruled upon below, explain why the court
should reach the issue anyway.
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PRACTICE NOTE: Simply citing the exceptions to
the general rule is insufficient; explain which of those
exceptions allows the court to reach the issue. State v.
J.D.H., 48 Kan. App. 2d 454, 459, 294 P.3d 343 (2013).
Arguments and Authorities:
If an issue requires the application of a multi-step test, apply each
step separately.
Support arguments with quality citations or with compelling
arguments if no existing authority supports the argument. Focus on
quality, rather than quantity; “[t]here is little or no reason to string cite.”
Berry at p. 122.
Do not be afraid to look outside the jurisdiction, especially if there
is no Kansas authority on point.
Avoid long block quotes, which a reader is likely to skip.
Avoid using “Id.”
Address unfavorable authority.
Anticipate and refute potential counter-arguments. Garner at
p. 410.
If writing an appellee or reply brief, examine the initial brief for
weaknesses and identify them for the court. Look for errors of fact,
errors of law, errors of logic or reasoning, inconsistent arguments, and
accidental concessions. Berry at pp. 136-37.
The Conclusion:
Ask the Court for the specific relief requested.
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CHAPTER 10
Oral Argument
§ 10.1 Introduction
Oral argument invigorates some and intimidates others. However
you view it, when you receive notice that your case has been placed on the
oral argument calendar, there are a few steps you should take to ensure
your effectiveness.
This chapter suggests methods of preparing for your argument,
provides information as to the hearing procedures followed by both the
Kansas Supreme Court and Kansas Court of Appeals, and discusses tips
and practices you might use in argument.
§ 10.2 Preparation
Preparation for oral argument is at least as important as the argument
itself. Several weeks ahead of time, check for supplemental authority and
any developments that have occurred since the filing of your brief. Inform
the court and your opponent of any new developments by filing and
serving a letter under Rule 6.09(b). Your letter should include the relevant
citations, the page or pages of the brief intended to be supplemented, and
a short, minimally argumentative statement concerning application of the
citations. A day or two before argument, check again and be prepared to
address any additional authority at argument. Fax file this letter under
Rule 6.09(b) and serve by fax as well to assure your opponent has advance
notice of any fresh authority to be raised at argument. Do not ever cite
authority at oral argument which has not been presented to the court and
opposing counsel in a brief or letter of additional authority.
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PRACTICE NOTE: Pay particular attention to time
frames and the word limitation in Rule 6.09(b). Until
fourteen days before oral argument, there is wide
discretion to cite persuasive or controlling authority
discovered after the party’s last brief was filed. Within
the fourteen days before oral argument, only persuasive
or controlling authority published or filed in that time
frame may be cited. In all instances, the body of the
6.09(b) letter is limited to 350 words.
Review and study all significant cases cited in the briefs, and be
prepared to discuss factual distinctions between your case and the cases
cited.
Read and re-read the record on appeal. One of the most common
and least excusable mistakes in oral argument is lack of familiarity with
the record. This is equally true whether you were the attorney of record
in the trial court or appellate counsel only. Perhaps the most crucial point
on appeal is to identify and apply the appropriate standard of review.
Failure to do so is the best downpayment on a failed appeal. The briefing
rules, 6.02(a)(5) and 6.03(a)(4), require a statement of those standards
of review, and as former Chief Judge McKay of the Tenth Circuit once
noted, it’s not because the court needs to know, it’s to direct counsel to
the straight and narrow.
Develop an outline of your argument in a form and on a medium that
is comfortable for you. Large index cards work well, as shuffling papers
can be distracting. Some attorneys prefer to work from a laptop or iPad.
In preparing the outline, determine the issues you want to focus on and
develop your key points with respect to those issues. Some attorneys find
it works well to develop two outlines of their argument—one long and
one short. Then, if you are lucky enough to be asked multiple questions
by the court, you can resort to “Plan B” and utilize the short version of
your argument in the time remaining. If you type these outlines, use a
large font, because at the podium your eyes will be much farther from the
text than your normal reading distance.
In developing your outline, consider developing a theme or story
line that will engage the court, hold the judges’ attention, and hopefully
provoke questions. This is the time to look at the big picture and ask
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yourself what the case is really all about and consider how it fits into a
particular area of the law.
While understandable, it is a mistake to try to touch on every issue
and argument covered in your brief (initial restraint in the number of
issues raised in the brief is also recommended). Consider which crucial
issues would benefit from clarification and exploration, and develop your
argument around those issues. Anticipate your weakest arguments and
plan how you might respond to questions from the court.
Avoid taking shots at the district court judge. There are more former
trial judges on the appeals court than appellate lawyers. If it is truly
necessary, this can be done subtly but effectively in the briefs. Often, a
simple transcript excerpt is vastly more effective than a page of misguided
invective.
The bottom line in preparing your argument outline is to be a
minimalist—i.e., be prepared to say all that you need to say in the shortest
time period, thus allowing for maximum flexibility during argument.
You should also prepare for argument by anticipating questions the
court will ask. The best way to do this is to know the weaknesses—or
what look like weaknesses—of your case.
Consider conducting a moot court. It doesn’t require a large time
commitment but can yield great results. Ask a few friends or colleagues
to read your brief, and then present your argument to them. Encourage
questions. Following your presentation, ask your “judges” for comments
about your demeanor and presentation style, as well as the substantive
aspects of your argument. Their questions may be indicative of those by
your panel.
Last, if there is a complexity of parties and cross-appeals, determine
ahead of time how you want the argument structured and seek agreement
of other counsel.
§ 10.3 Format of Hearings in the Supreme Court
Oral arguments before the Kansas Supreme Court are held before
the full court in the Supreme Court Courtroom. Counsel are notified at
least 30 days in advance of the date and time they are to appear for oral
argument. Rule 7.01(d). The Supreme Court holds a formal docket call
at the commencement of the morning and afternoon sessions; if counsel
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fails to appear at the appropriate docket call, oral argument is waived.
Rule 7.01(d). The clerk of the appellate courts normally provides very
helpful guidance at that time, to which you should pay close attention.
Oral argument is limited to 15 minutes for each party. Rule 7.01(e).
However, either party can request 20, 25, or 30 minutes simply by printing
“oral argument:,” followed by the desired amount of time on the lower
right portion of the front of the brief cover. Rule 7.01(e). See § 12.36,
infra. The court may also designate larger amounts of time for unusually
complex appeals or those involving issues of great public significance.
The oral argument calendar will indicate the amount of time granted for
oral argument, with both sides receiving an equal amount of time. Rule
7.01(e).
If there are multiple parties on either side who are not united in
interest as to the issues on appeal and who are separately represented, the
court will, on motion, allot time for separate arguments. However, if the
parties are united in interest as to the issues, they must divide the allotted
time among themselves by mutual agreement. If a party does not file a
brief, that party may not argue before the court. Rule 7.01(e). Amici curiae
are not permitted to argue absent a special order.
In the Supreme Court, a digital timer is displayed on the podium, so
counsel knows at all times how many minutes remain in that portion of
the argument. Appellant’s counsel must advise the court at the start of
the argument how many minutes, if any, are requested for rebuttal. The
court may occasionally allow a short additional time when questioning
has been extensive, but it is never safe to count on this. Arguments taking
less than the full allocated time are seldom criticized on that basis.
§ 10.4 Format of Hearings Before the Court of Appeals
The Kansas Court of Appeals may hear argument en banc, but generally
sits in panels of three judges, as designated by the Chief Judge, at varying
locations throughout the State. Rule 7.02(a) and (c). Generally, four to
five panels are scheduled each month, and each panel hears approximately
12 to 15 arguments over a 2-day period. The number of en banc hearings
in the court’s nearly 40-year history can be counted on one hand.
As in the Supreme Court, oral argument before the Court of Appeals
is limited to 15 minutes for each party. Either party may request 20, 25,
or 30 minute arguments by printing “oral argument:,” followed by the
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desired amount of time, on the lower right portion of the front of the
brief ’s cover. Rule 7.02(f)(2). See § 12.36, infra.
Not less than 30 days prior to argument, the Court of Appeals issues
an oral argument calendar that indicates the amount of time granted for
argument. Both parties are granted the same amount of time. Rule
7.02(f)(1).
Like the Supreme Court, the Court of Appeals will permit parties on
the same side, who are not united in interest as to the issues on appeal and
who are separately represented, to request separate arguments. However,
if the parties are united in interest, they must divide the allotted time
among themselves by mutual agreement. Rule 7.02(f)(5).
The Court of Appeals places many cases on the summary calendar.
Appeals placed on the summary calendar are deemed submitted without
oral argument. Rule 7.01(c)(4). Any party seeking argument on a
summary calendar case must file a motion within 14 days after notice of
the calendaring was mailed by the clerk setting forth the reasons why oral
argument would be helpful. Rule 7.01(c)(4). The court tends to be liberal
with such requests if good cause is shown.
Unlike the Supreme Court, there is no formal docket call in the Court
of Appeals. However, all attorneys are expected to be present at the
beginning of the morning or afternoon session in which their arguments
are scheduled, as the court sometimes makes last minute changes in
the schedule to accommodate the parties or to reflect a change in the
court’s schedule. Absence of counsel tends to send a counter-productive
message.
Keep in mind that, in the Court of Appeals, there is no timer on the
podium. Although the presiding judge will advise counsel when the time
for argument has ended, counsel must keep track of how much time has
been used. Consider placing your watch or timer on the podium, where
it is visible to you.
§ 10.5 Introductory Phase of Argument
If you are the appellant, introduce yourself and your argument
clearly and assertively. Tell the court what action you want the court to
take and why the court should take the action you seek. The introductory
portion of your argument is your opportunity to provide the court with a
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“hook,”—i.e., something memorable that will jog the court’s memory when
your case is conferenced. Keep in mind that your case is competing with
several others on that docket for the panel’s attention and recollection.
Give the court a brief description or road map of where you will go
in your argument. It is entirely acceptable to let the court know that some
issues will not be covered in argument but that you do not concede those
issues. The introduction is your opportunity to narrow the playing field
and make sure the court is in the same ballpark on the issues.
As appellee, you can use the introductory portion of your argument
to introduce the court to your point of view of the case and to frame
the issues as the appellee sees them. Your focus should be on quickly
bringing the court back to where it should be — i.e., emphasize what the
case is not. Briefly discuss the appropriate standard of review and remind
the court that appellant fails to establish any material flaws in the trial
court’s action.
§ 10.6 Body of Argument
Whether you are the appellant or appellee, keep in mind that your goal
is to educate the court about what it doesn’t already know or understand.
You want the court to think about the result you wish to achieve, as well as
the consequences of your adversary’s proposed result. You must convince
the court that your proposed result is fair, just, and correct – not merely
a technical requirement. Point out the practical consequences of each
side’s suggested result, but avoid the common fault of hyperbole here.
Limit your presentation of the facts, as the court is generally familiar
with the case from the bench memo prepared by its research attorneys.
If you need to discuss facts, try to discuss them conversationally, as they
pertain to the issues, rather than in a chronological and detailed fashion.
The latter approach holds a real danger of diminished attention and
tangential questions. Account for unfavorable facts, as you will most
certainly be asked about them. It is important that you don’t rely on
or reference facts not in the record on appeal or that weren’t before the
district court.
The court may interrupt your argument with questions almost
immediately or within a few moments of your introduction. If that
happens, view it as a positive circumstance, rather than an interruption.
Questions from the court indicate interest from at least one judge and
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may prove helpful in getting the other judges to talk about that aspect of
the case, as well as other aspects. So be entirely flexible throughout your
argument, and understand that you may be required to vary partially, if
not entirely, from your prepared outline or text. Prioritize your outline for
the most crucial points in case questions consume much of your time.
Never use the fact that you were not the attorney of record in the
trial court as an excuse for lack of familiarity with the record. That excuse
is usually about as welcome as telling the court that you don’t practice in
the area of substantive law at issue. Neither have the judges probably,
and they are often resentful about sharing their time with lawyers who
use it as an excuse. Similarly, if you are asked a question that requires you
to discuss information that was not before the trial court and thus is not
before the appellate court, you should respond to the question if you can,
but advise the court that the information the court seeks is not part of the
record on appeal and thus not pertinent to the issues on appeal.
When asked a question by the court, it is essential that you fully
and directly answer the question asked and that you answer the question
when asked, rather than putting it off until it comes up in your outline.
Moreover, the court appreciates candor. If you do not know the answer
to the question, consider offering to research the answer and provide a
letter to the court following argument. The court may then allow opposing
counsel to respond.
You may be pressed to concede a point or issue, thus providing
you with the opportunity to implement what has been referred to as the
“Kenny Rogers’ rule”—i.e., “you got to know when to hold ‘em, know
when to fold ‘em.” To refuse to concede an obviously negative point
risks your credibility and may indicate to the court that you are not as
familiar with the case or the case law as you should be. On the other
hand, the court may extend a concession you make in argument and, in
the subsequent opinion, take your concession to a place you never meant
it to go. This is often not a helpful occurrence in client relations, so try to
anticipate what you can and cannot concede ahead of time. The bottom
line is that when you make a concession, limit it as much as possible, and
explain why the concession you have made does not hurt your argument.
A good limiting technique is often to begin any reply with “In the context
of this case....”
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Avoid citing cases in your argument, unless you are citing a case
that has not been included in your brief. Otherwise, you risk breaking
the rapport you have developed with the court. If you must discuss a
specific case, simply refer to it by all or part of its caption, not the legal
citation. Keep in mind that oral argument is an opportunity to develop
your position conceptually; you must rely on your brief to provide the indepth support for your argument.
§ 10.7 Delivery and Style
Speak clearly and at a pace that the court can understand and follow.
Predictable nervousness often manifests in rapid speech, and this must
be recognized and resisted. While it may be tempting to get as much
information to the court as quickly as possible, the court cannot process
the information as quickly as you can speak it. So slow down, and
make sure the court understands the points you are trying to make. Be
conversational, rather than preachy, and try to avoid using legalese. Don’t
challenge the court to ask “counsel, could you mumble a little louder
please.”
Make eye contact with each of the judges throughout your argument,
even if only one judge is asking most of the questions. It is a mistake to
focus on a single judge who you feel is sympathetic.
Use direct language and avoid using language that indicates a lack of
confidence—“I may be wrong, but....” or “it is our position that....” Avoid
sarcasm and overly emotional appeals to the court. Remember, you are
not speaking to a jury but to an appellate court. It is likely that righteous
indignation will not have the effect you desire, and subtle wit is often
missed as badly as strong humor is unappreciated.
Similarly, if you receive questions from members of the court that
you perceive as hostile or personal in tone, try to stay focused. Take the
high road, and respond professionally and courteously. Hopefully, you
will make points with the remaining members of the court, regardless of
the seemingly hostile or inappropriate questions of one judge.
Along that same line, it is essential that you pay attention to the
judges’ demeanor. If the court is looking bored, dazed, or confused,
consider the possibility that your argument is not keeping their attention
or is not being comprehended. This might be the time to move on to a
different issue or vary your delivery.
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Humor works less often than many lawyers expect and should seldom
be attempted before judges who are not personally familiar with counsel.
It can be misinterpreted as impertinence or undue familiarity and will be
unsettling if there is no favorable response. Above all, keep the need for
personal credibility foremost in your mind.
§ 10.8 Conclusion
Counsel often forget a simple rule—know when to sit down. If
you have made all the points you intended to make but still have a few
minutes of time, don’t feel compelled to continue. Just conclude, and
sit down. Random repetition eats away at your reputation and detracts
from the points you have made. Concise, interesting argument is always
more effective. Some panels will advise in advance that failure to use all
allocated time is not prejudicial.
On the other hand, if a “hot” court has taken up most of your time,
consider asking for one or two minutes to sum up the key points you
planned to make in your argument. The worst that can happen is the
court can reject your request, in which case, you can simply refer the court
to the arguments in your brief.
Your conclusion, like your introduction, should be memorable and
should leave the court with the “hook” the judges can remember when
they are conferencing your case. You should very briefly highlight the
strengths of your argument, how they fit the standard of review, and
remind the court of the action you want the court to take. It is shocking
how many counsel fail to do so, and occasional eccentric remand orders
can result.
You might consider developing a concise and dispositive paragraph
that you would like to read if you were writing the opinion. Make that
your exit line.
§ 10.9 Rebuttal
If you are the appellant, it is a good idea to reserve a few minutes for
rebuttal. The mere prospect of it may caution the appellee against trying
to overreach. Also realize, in making your request for rebuttal time, that
it is common for counsel to use more time than planned in the opening
portion of argument. Rebuttal offers a chance to regroup and make any
crucial points previously overlooked (although, strictly speaking, rebuttal
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should respond only to appellee’s argument). Do not feel compelled to
use the reserved time, however, because unless you have a forceful point
to make, you could lose more than you might gain. This is especially true
if the appellee has not successfully responded to your argument.
If you do utilize your reserved rebuttal time, keep your rebuttal very
short and to the point. Don’t repeat your initial argument.
§ 10.10 Final Thoughts
As you walk or drive back to your office following your argument,
take the time to really listen to yourself. You are your own best critic. If
your argument was before the Kansas Supreme Court, you can review
and analyze the archived argument at http://www.kscourts.org/kansascourts/supreme-court/arguments.asp. If you listen to your own mental
feedback and self-analysis, your next argument will be easier, more
effective, and more enjoyable than the last. There is also great value for
younger or inexperienced counsel in hearing many recorded arguments
to gain a feel for the tone and temperament of the court and individual
justices. Pay particular attention to the subject of standards of review in
their questions. The justices don’t ask these questions because they need
to learn the answers. They want you to learn the answers.
§ 10.11 Suggestions for Further Reading
Aldisert, Winning on Appeal: Better Briefs and Oral Argument, Ch. 22-25
(2nd ed. 2003).
Garner, The Winning Oral Argument: Enduring Principles with Supporting
Comments from the Literature (2007).
ABA, Council of Appellate Lawyers, Appellate Practice Compendium (D.
Livingston Ed.), Ch. 32 (ABA Press, 2012).
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CHAPTER 11
Disciplinary Proceedings
I.
ATTORNEY DISCIPLINE
§ 11.1 History
The Rules Relating to the Discipline of Attorneys, which provide
substantive conduct standards and procedural rules in attorney discipline
cases, can be found in the Kansas Court Rules Annotated, beginning at
Rule 201. In 1988, the Kansas Supreme Court adopted the Model Rules
of Professional Conduct to replace the Model Code of Professional
Responsibility, providing the substantive rules in attorney discipline cases.
Then, in 1999, the Supreme Court changed the name of the substantive
rules to the Kansas Rules of Professional Conduct. The substantive rules
can be found at Kansas Supreme Court Rule 226.
§ 11.2 Jurisdiction
Original actions before the Kansas Supreme Court include disciplinary
proceedings relating to attorneys. The disciplinary process is conducted
under the authority of the Supreme Court under K.S.A. 7-103.
§ 11.3 Kansas Disciplinary Administrator
The disciplinary administrator is appointed by the Supreme Court
and serves at the pleasure of the Supreme Court. The disciplinary
administrator is charged with investigating and prosecuting cases of
attorney misconduct. See Rule 205.
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§ 11.4 Kansas Board for Discipline of Attorneys
The Kansas Board for Discipline of Attorneys consists of 20 attorneys
appointed by the Supreme Court. The board members serve staggered
4-year terms. Board members may serve three consecutive 4-year terms.
See Rule 204(c). The chair and the vice-chair of the board serve on the
review committee, together with a third attorney who is not a member of
the board.
The Supreme Court authorized the board to adopt procedural rules
not inconsistent with the rules of the Supreme Court. See Rule 204(g).
Accordingly, the board adopted the Internal Operating Rules of the Kansas
Board for Discipline of Attorneys. The Internal Operating Rules include
sections regarding general rules, the review committee, the appointment
of hearing panels, pre-hearing and formal hearing procedures, the panel
report, and reinstatement. The rules govern proceedings before the review
committee and hearing panels. The internal operating rules are published in
the Kansas Court Rules Annotated following Rule 224 and can be found at
the Supreme Court’s website: www.kscourts.org/ rules/Rule-List.asp?r1=R
ules+Relating+to+Discipline+of+Attorneys.
§ 11.5 Complaints
All complaints must be in writing and filed with the disciplinary
administrator. Approximately 50% of the complaints filed with the
disciplinary administrator come from clients, another 45% or so come
from lawyers and judges, including self-reported violations, and the final
5% come from citizens generally. Typically, the disciplinary administrator
receives approximately 900 complaints every year. Of those complaints,
approximately two-thirds are handled informally with correspondence
to the complainant and the complained-of attorney. Approximately 300
complaints are docketed and investigated annually.
A public information brochure published by the disciplinary
administrator, “If a Complaint Arises about Lawyer Services,” is available
at the disciplinary administrator’s office or the appellate clerk’s office for
consumers of legal services and others thinking about filing a complaint.
The information in the brochure can also be found at the disciplinary
administrator’s website: www.kscourts.org/rules-procedures-forms/
attorney-discipline/complaints.asp.
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In 2004, the disciplinary administrator developed a three-page
complaint form. The complaint form is designed so that the complainant
will provide all of the necessary basic information, e.g., contact information,
case number, court of jurisdiction. In addition to completing the
complaint form, all complainants are encouraged to provide a detailed
narrative description of the basis of the complaint and documentation to
support the facts alleged.
PRACTICE NOTE: You may request the complaint
form by contacting the disciplinary administrator’s
office, the appellate clerk’s office, or by downloading it
from the Disciplinary Administrator’s website. See also
§ 12.37, infra.
§ 11.6 Disciplinary Investigations – Duties of the Bar and
Judiciary
All members of the bar must assist the disciplinary administrator
pursuant to Rule 207. The duty applies to judges as well as attorneys.
The duty includes reporting violations as well as aiding the Supreme
Court, the Kansas Board for Discipline of Attorneys, and the disciplinary
administrator in investigations and prosecutions. One must be mindful
that Rule 207 contains no exception for confidential information.
In addition, the Kansas Rules of Professional Conduct require
all members of the bar to report violations whenever the attorney has
“knowledge of any action, inaction, or conduct which in his or her
opinion constitutes misconduct of an attorney under these rules.” KRPC
8.3(a). KRPC 8.3 does not require disclosure of information subject to
an attorney’s duty of confidentiality under KRPC 1.6 or information
discovered through participation in a lawyer assistance program or other
organization such as Alcoholics Anonymous. See Rule 206. Violations by
attorneys must be reported to the disciplinary administrator. Attorneys
who find themselves charged with a felony crime have an affirmative duty
to inform the disciplinary administrator in writing of the charge and the
disposition. Rule 203(c)(1).
When an attorney has knowledge that a judge has violated the rules
governing judicial conduct, which raises a substantial question regarding the
judge’s fitness for office, the attorney must report the judicial misconduct.
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KRPC 8.3(b). Judicial misconduct must be reported to the Commission
on Judicial Qualifications by contacting the clerk of the appellate courts.
The disciplinary administrator generally sends a letter to the attorney
accused of misconduct and requests a response to the initial complaint.
The disciplinary administrator provides the attorney a time limit within
which to respond to the initial complaint. Failure to assist the disciplinary
administrator is a separate violation of the Supreme Court rules. See Rule
207; KRPC 8.1; In re Lober, 276 Kan. 633, 638-40, 78 P.3d 458 (2003); In re
Williamson, 260 Kan. 568, 571, 918 P.2d 1302 (1996); and State v. Savaiano,
234 Kan. 268, 670 P.2d 1359 (1983).
Ethics and grievance committees located across the state investigate
allegations of attorney misconduct. The disciplinary administrator may
request that an investigator from the ethics and grievance committee
investigate a complaint, or the disciplinary administrator may assign the
investigation to one of the three investigators on staff at the disciplinary
administrator’s office. Finally, pursuant to Rule 210, an attorney who is
not a member of an ethics committee may be requested by the disciplinary
administrator to investigate a complaint or to testify at a disciplinary
hearing as a fact or expert witness. Once the investigation is completed,
the investigator files an investigative report with the disciplinary
administrator’s office.
During investigations, it often becomes apparent that the lawyer is
impaired because of an addiction or mental illness. In order to assist lawyers
and protect the public, the Supreme Court, in 2002, created the Kansas
Lawyers Assistance Program. See Rule 206. All records and information
maintained by the director of the Kansas Lawyers Assistance Program
are confidential and not subject to discovery or subpoena. The reporting
requirements of Rule 207 and KRPC 8.3 do not apply to lawyers working
for or in conjunction with the Kansas Lawyers Assistance Program. See
Rule 206(k).
In addition to the Kansas Lawyers Assistance Program, some local
bar associations also have their own lawyers assistance committees. Some
local bar associations likewise have fee dispute resolution committees. The
ethics and grievance committees, the lawyer assistance committees, and
the fee dispute resolution committees play an important role in assisting
lawyers and clients and are an integral part of the disciplinary process.
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§ 11.7 Disciplinary Procedure
After the investigation is completed, the investigative report and
associated materials are forwarded by the disciplinary administrator to the
review committee. The review committee is charged with reviewing all
disciplinary cases that have been docketed for investigation to determine
if probable cause exists to believe an attorney has violated a rule of
professional conduct or other Supreme Court rule.
If the review committee determines, after reviewing the materials
provided, that probable cause exists to believe that an attorney has violated
the rules, the review committee may place an attorney in the Attorney
Diversion Program, direct that the attorney be informally admonished
by the disciplinary administrator, or direct that a hearing panel from the
Kansas Board for Discipline of Attorneys conduct a formal hearing. Rule
210(c). Throughout the formal disciplinary proceedings, the attorney
accused of misconduct is referred to as the respondent. If the review
committee determines that probable cause does not exist, the review
committee will dismiss the case. Rule 210(c). The review committee also
may dismiss the complaint if it determines that, while probable cause
exists, clear and convincing evidence, which is the burden of proof in
disciplinary proceedings, does not exist. The review committee dismisses
approximately 65% of all docketed complaints.
All complaints filed with the disciplinary administrator’s office remain
confidential during the investigation.
PRACTICE NOTE: Confidentiality applies to all
persons connected with the disciplinary process except
the complainant and the respondent, who are never
covered by the rule of confidentiality. See Jarvis v. Drake,
250 Kan. 645, 830 P.2d 23 (1992).
If the review committee dismisses the complaint, the complaint will
always be confidential. If the review committee finds probable cause
to believe that the attorney has violated one or more rules, the matter
becomes one of public record. See Rule 222.
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PRACTICE NOTE: Once the review committee has
found probable cause to believe that a violation has
occurred, the disciplinary administrator maintains a
policy of open file review by all attorneys accused of
misconduct, their attorneys, and any member of the
public.
The disciplinary administrator or the respondent may request that
the review committee reconsider a probable cause determination. The
review committee may reconsider or deny reconsideration. If the review
committee, on reconsideration again concludes that probable cause exists
to believe that the respondent violated a rule, the case proceeds as it would
otherwise. If the review committee reconsiders and finds no probable
cause, the case is dismissed.
PRACTICE NOTE: Once there has been a probable
cause determination, it is a good idea to be represented by
counsel in disciplinary proceedings. Many respondents
are unfamiliar with the special procedural rules that
apply and may also be less than objective in considering
and presenting their positions.
§ 11.8 Temporary Suspension
The Supreme Court, the Kansas Board for Discipline of Attorneys,
or the disciplinary administrator may file a motion requesting that the
attorney’s license be temporarily suspended pending the outcome of
the disciplinary proceedings. See Rule 203(b). Typically, the disciplinary
administrator reserves that remedy for cases where clients are in immediate
risk of an attorney’s continued misconduct.
An attorney who has been convicted of a felony is temporarily
suspended automatically, pending the outcome of the disciplinary
proceedings. See Rule 203(c)(4).
§ 11.9 Attorney Diversion Program
In 2001, the Supreme Court created the Attorney Diversion Program
by adopting Rule 203(d). The diversion program is an alternative to
traditional disciplinary procedures. It is designed for attorneys who have
not previously been disciplined. Attorneys will be disqualified from
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diversion if the conduct complained of involved “self-dealing, dishonesty,
or a breach of fiduciary duty.” Rule 203(d)(1)(ii).
In determining whether an attorney should be allowed to participate
in the diversion program, the review committee determines “whether the
diversion process can reasonably be expected to cure, treat, educate, or
alter the [attorney’s] behavior so as to minimize the risk of similar future
misconduct.” Rule 203(d)(1)(ii).
The diversion agreement should include provisions uniquely designed
to correct the misconduct. The agreement may include provisions, among
others, that require the attorney to pay restitution, participate in treatment,
cooperate with a practice supervisor, or complete additional continuing
legal education.
If an attorney fails to complete the terms and conditions of diversion,
the attorney’s participation in the diversion program is terminated and
traditional disciplinary procedures resume. Rule 203(d)(2)(vii).
Successful completion of the diversion agreement will be reported to
the review committee, and the pending disciplinary case will be dismissed.
The fact that an attorney successfully participated in the diversion program
will remain confidential and not available to the public. However, if the
attorney engages in misconduct following the successful completion of the
diversion program, the attorney’s participation in the diversion program
can be considered prior discipline in future disciplinary proceedings. Rule
203(d)(2)(vi).
§ 11.10 Informal Admonition
If the review committee directs that the attorney be informally
admonished by the disciplinary administrator, the attorney may accept
the informal admonition or appeal the review committee’s decision. Rule
210(d). If the attorney accepts the informal admonition, an appointment
is scheduled between an attorney in the disciplinary administrator’s
office and the attorney. During the meeting, the attorneys discuss the
misconduct, discuss any remedial action already taken by the attorney, and
discuss any remedial action that needs to be taken.
If the attorney appeals from the review committee’s decision that
he or she be informally admonished, a hearing panel is appointed and the
matter proceeds as described below. Rule 210(d) and 211.
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§ 11.11 Formal Hearing and Procedural Rules of the Kansas Board for Discipline of Attorneys
If the review committee directs that a hearing panel conduct a formal
hearing or if an attorney appeals from the review committee’s decision
that the attorney be informally admonished, a hearing panel is appointed.
The chair of the Kansas Board for Discipline of Attorneys appoints the
hearing panel. Hearing panels consist of two members of the Kansas
Board for Discipline of Attorneys and one member from attorneys at
large. See Rule 211(a). However, members of the review committee
who initially reviewed the case may not serve on the hearing panel. See
Internal Operating Rule C.1.
PRACTICE NOTE: Generally, the chair tries to
appoint attorneys to the hearing panel who practice in
the same area of law, but not in the same location in
Kansas, as the respondent.
After the hearing panel is appointed, the hearing is scheduled.
Thereafter, an attorney from the disciplinary administrator’s office files a
formal complaint. The formal complaint must be sufficiently clear and
specific as to inform the attorney of the alleged misconduct. See Rule
211(b). The disciplinary administrator is required to serve a copy of the
formal complaint and notice of the hearing on the attorney, the attorney’s
counsel, and the complainant, giving at least 15 days’ advance notice. The
formal complaint and notice of hearing must be personally served on the
respondent or sent by certified mail to the respondent’s last registration
address or last known office address. See Rule 215. The respondent is
required to file a written answer to the formal complaint within 20 days
of the filing of the formal complaint. See Rule 211(b).
PRACTICE NOTE: Disciplinary hearings are
governed by the Rules of Evidence as set forth in the
Code of Civil Procedure, K.S.A. 60-401 et seq. See Rules
211(d) and 224(b).
It is imperative that a respondent and his or her counsel review the
Rules Relating to the Discipline of Attorneys, the Internal Operating Rules
of the Kansas Board for Discipline of Attorneys, and the Kansas Rules
of Professional Conduct to fully understand their rights and obligations.
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PRACTICE NOTE: Internal Operating Rule D.1
requires all pre-hearing procedural matters, including
requests to continue a hearing, be raised by written
motion at least 10 days before the hearing.
All disciplinary proceedings before hearing panels and the Supreme
Court are open to the public. At the hearing, witnesses are sworn and all
proceedings are transcribed. See Rule 211(e).
The disciplinary administrator may introduce evidence that the
respondent engaged in criminal activity or other actionable conduct. All
criminal convictions and civil judgments that are based upon clear and
convincing evidence are conclusive evidence of the commission of the
crime or civil wrong. Additionally, participation in a diversion program
for a criminal offense is deemed, for disciplinary purposes, a conviction.
Other civil judgments, based upon a preponderance of the evidence, are
prima facie evidence of misconduct, requiring the respondent to disprove
the findings. See Rule 202.
Following the submission of evidence, the hearing panel files a
report setting forth its findings, conclusions, and recommendations. “To
warrant a finding of misconduct the charges must be established by clear
and convincing evidence.” See Rule 211(f). The hearing panel’s report
also includes any mitigating and aggravating circumstances relied upon.
See § 11.13, infra (ABA Standards).
PRACTICE NOTE: Discipline imposed in another
jurisdiction on an attorney with dual licenses is not
binding in Kansas. However, provided the other
jurisdiction’s decision is based on clear and convincing
evidence, the Supreme Court will accept the findings
of fact and the conclusions of law. The only issue
before the hearing panel and the Supreme Court, in
that situation, is the sanction to be imposed. See Rule
202. If the other jurisdiction’s decision is based on a
preponderance of the evidence or on probable cause,
the facts must be established in the Kansas proceeding.
See In re Tarantino, 286 Kan. 254, 182 P.3d 1241 (2008).
The hearing panel may recommend disbarment, suspension for an
indefinite period of time, suspension for a definite period of time, censure
to be published in the Kansas Reports, censure not to be published in the
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Kansas Reports, informal admonition by the Kansas Board for Discipline
of Attorneys or by the disciplinary administrator, or any other form of
discipline or conditions, including probation. See Rule 203(a) and § 11.12,
infra.
If the hearing panel finds a violation of the rules and recommends
that the respondent be informally admonished by the disciplinary
administrator, the respondent may not appeal the decision. However, if
the hearing panel recommends informal admonition or no discipline or if
the hearing panel dismisses the complaint, the disciplinary administrator
may appeal to the Supreme Court. See Rule 211(f).
If the hearing panel recommends that the attorney be disbarred,
suspended, or censured, the case is filed with the clerk of the appellate
courts and is docketed for oral argument before the Supreme Court. Until
the attorney receives a copy of a docketing notice from the clerk of the
appellate courts, nothing relating to the disciplinary proceeding should be
filed with the clerk. But see § 11.8, supra (Temporary Suspension).
§ 11.12 Probation
In 2004, the Supreme Court adopted a rule that sets forth certain
requirements regarding a respondent’s request for probation. See Rule
211(g). If the respondent intends to request probation, respondent
must provide “the hearing panel and the disciplinary administrator with a
workable, substantial, and detailed plan of probation at least 10 days prior
to the hearing on the Formal Complaint.” Rule 211(g)(1). The hearing
panel is prohibited from recommending that the respondent be placed on
probation unless each of the following conditions is present:
▪ The respondent puts the plan of probation into effect prior
to the hearing on the formal complaint;
▪ The misconduct can be corrected by probation; and
▪ Placing the respondent on probation is in the best interests
of the legal profession and the citizens of the State of
Kansas. See Rule 211(g)(3).
The probation rule also sets forth a specific procedure to be followed
in the event the respondent fails to comply with the terms and conditions
of probation. See Rule 211(g)(9) - (12).
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§ 11.13 ABA Standards for Imposing Lawyer Sanctions
In 1986, the American Bar Association House of Delegates approved
a set of Standards compiled and proposed by the ABA Joint Committee
on Professional Sanctions. Disciplinary systems in many jurisdictions,
including Kansas, have employed the Standards as guidelines for imposing
lawyer discipline in individual cases. The disciplinary administrator and the
respondent may refer to the Standards when recommending an appropriate
level of discipline at hearings. Internal Operating Rule E.3 provides that
the hearing panel may apply the Standards in its determination and may
reference and discuss the Standards in the final hearing report.
The model developed through the Standards requires the hearing
panel, in making a recommendation regarding the imposition of discipline,
or the Supreme Court, in imposing discipline, to answer the following
four questions:
1. What ethical duty did the lawyer violate?
2. What was the lawyer’s mental state? In other words, did
the lawyer act intentionally, knowingly, or negligently?
3. What was the extent of the actual or potential injury caused
by the lawyer’s misconduct?
4. Are there any aggravating or mitigating circumstances?
Aggravating circumstances are any considerations or factors that
may justify an increase in the degree of discipline to be imposed. Factors
that may be considered in aggravation by the hearing panel include:
▪ Prior disciplinary offenses;
▪ Dishonest or selfish motive;
▪ A pattern of misconduct;
▪ Multiple offenses;
▪ Bad faith obstruction of the disciplinary proceeding by
intentionally failing to comply with rules or orders of the
disciplinary process;
▪ Submission of false evidence, false statements, or other
deceptive practices during the disciplinary process;
▪ Refusal to acknowledge wrongful nature of conduct:
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▪ Vulnerability of victim;
▪ Substantial experience in the practice of law;
▪ Indifference to making restitution; and
▪ Illegal conduct, including that involving the use of controlled
substances.
Mitigating circumstances are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed. Mitigating
factors do not excuse a violation and are to be considered only when
determining the nature and extent of discipline to be administered. Factors
that may be considered in mitigation by the hearing panel include:
▪ Absence of a prior disciplinary record;
▪ Absence of a dishonest or selfish motive;
▪ Personal or emotional problems if such misfortunes have
contributed to violation of the Kansas Rules of Professional
Conduct;
▪ Timely good faith effort to make restitution or to rectify
consequences of misconduct;
▪ The present and past attitude of the attorney as shown by
his or her cooperation during the hearing and his or her full
and free acknowledgment of the transgressions;
▪ Inexperience in the practice of law;
▪ Previous good character and reputation in the community
including any letters from clients, friends, and lawyers in
support of the character and general reputation of the
attorney;
▪ Physical disability;
▪ Mental disability or chemical dependency including
alcoholism or drug abuse when: a) there is medical evidence
that the respondent is affected by a chemical dependency
or mental disability; b) the chemical dependence or mental
disability caused the misconduct; c) the respondent’s
recovery from the chemical dependency or mental disability
is demonstrated by a meaningful and sustained period of
successful rehabilitation; and d) the recovery arrested the
misconduct and recurrence of that misconduct is unlikely;
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▪ Delay in disciplinary proceedings;
▪ Imposition of other penalties or sanctions;
▪ Remorse;
▪ Remoteness of prior offenses; and
▪ Any statement by the complainant expressing satisfaction
with restitution and requesting no discipline.
The Standards are organized based upon the duty violated by the
attorney. Each section includes the language of the Standard as well as
commentary that often includes case citations.
PRACTICE NOTE: Copies of the 67-page booklet
Standards for Imposing Lawyer Sanctions are no longer
available. However, an Adobe version of the Standards,
without the commentary, can be found on the ABA’s
website at: www.abanet.org/cpr/regulation/standards_
sanctions.pdf.
Recognizing the importance of consistency in imposing sanctions,
the Supreme Court and the Kansas Board for Discipline of Attorneys
have cited the Standards with approval in their decisions and reports,
respectively. See In re Ware, 279 Kan. 884, 892-93, 112 P.3d 155 (2005);
In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990); In re Price, 241
Kan. 836, 837, 739 P.2d 938 (1987). But see In re Jones, 252 Kan. 236,
843 P.2d 709 (1992), in which the Supreme Court expressly states that
“[c]omparison of past sanctions imposed in disciplinary cases is of little
guidance. Each case is evaluated individually in light of its particular facts
and circumstances and in light of protecting the public.” Jones, 252 Kan.
236 at Syl. ¶ 1.
§ 11.14 Disabled Attorneys
When the Kansas Board for Discipline of Attorneys or the disciplinary
administrator petitions the Supreme Court to determine whether an
attorney is incapacitated from continuing to practice law because of a
mental illness or because of an addiction to drugs or intoxicants, the Court
may order that the attorney be examined by a qualified medical expert. If
the Supreme Court concludes that the attorney is incapacitated, then the
Supreme Court shall transfer the attorney to disabled inactive status. See
Rule 220.
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If, during a disciplinary proceeding, it is determined that the
respondent is suffering from a disability because of a mental illness or
because of an addiction to drugs or intoxicants, then the Supreme Court
shall transfer the respondent to disabled inactive status, and the disciplinary
proceedings are placed on hold until such time as the respondent is no
longer disabled. See Rule 220(c). Respondents who have been transferred
to disabled inactive status may not engage in the practice of law. See Rule
220(a).
After an attorney has been transferred to disabled inactive status or
if it appears that for some other reason the affairs of an attorney’s clients
are being neglected, the chief judge of the judicial district in which the
attorney practiced shall appoint an attorney to inventory the attorney’s
client files. With the approval of the judge, the appointed attorney may
take such action as may be necessary to protect the interests of the attorney
and the attorney’s clients. See Rule 221(a).
PRACTICE NOTE: Disciplinary proceedings have
been deemed judicial proceedings. As a result, all
participants in disciplinary proceedings are granted
judicial immunity and public official immunity. See
Rule 223 and Jarvis v. Drake, 250 Kan. 645, 830 P.2d 23
(1992).
§ 11.15 Proceedings Before the Supreme Court
At the time a case is docketed with the Supreme Court, the clerk
of the appellate courts mails a copy of the final hearing report to the
respondent. Within 20 days, the respondent must file exceptions to the
report or all findings of fact are deemed admitted. If exceptions are filed,
the clerk of the appellate courts provides a copy of the hearing transcript
to the respondent. The respondent has 30 days from service of the
transcript to file a brief. The disciplinary administrator has 30 days from
the service of the respondent’s brief to file a brief, and the respondent
then has 14 days in which to file a reply brief. See Rule 212(e)(3).
All Supreme Court rules relating to civil appellate practice apply to
original disciplinary proceedings. Failure of the respondent to file a brief
in a timely manner is considered to be a waiver of the exceptions taken.
When the filing of briefs is complete, the matter is set for oral arguments
as in civil appeals.
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When no exceptions are filed, the respondent is notified when to
appear before the Supreme Court for oral argument. The respondent
may appear with counsel and may be heard regarding the discipline to be
imposed even if no exceptions are filed.
PRACTICE NOTE: Regardless of whether the
respondent filed exceptions, the respondent must appear
in person before the Supreme Court on the date set for
oral argument.
The record available to the Supreme Court includes the formal
complaint, the attorney’s answer, other pleadings filed, the hearing
transcript, the exhibits admitted into evidence, and the hearing panel’s final
hearing report. See Rule 212(b). Because the Supreme Court operates
from a closed evidentiary record, it is essential that all material facts be
included in the record at the hearing level.
§ 11.16 Scope of Review and Standard of Review
Appellate briefs must begin the discussion of each issue with a citation
to the appropriate standard of appellate review. See Rules 6.02(a)(5) and
6.03(a)(4). In disciplinary matters where exceptions and briefs are filed,
the Supreme Court’s scope of review is a complete de novo review of the
challenged factual findings and the legal conclusions. The Supreme Court
has a “duty in disciplinary proceeding[s] to examine the evidence and
determine for [themselves] the judgment to be entered.” State v. Klassen,
207 Kan. 414, 415, 485 P.2d 1295 (1971).
The Supreme Court has stated, though, that while the report “is
advisory only, it will be given the same dignity as a special verdict by a jury,
or the findings of a trial court, and will be adopted where amply sustained
by the evidence, or where it is not against the clear weight of the evidence,
or where the evidence consisted of sharply conflicting testimony.” State v.
Zeigler, 217 Kan. 748, 755, 538 P.2d 643 (1975), quoted in In re Carson, 252
Kan. 399, 406, 845 P.2d 47 (1993).
§ 11.17 Oral Argument
Disciplinary matters are generally heard as the final cases on the
Supreme Court’s oral argument docket. The parties are given 15 minutes
to argue the case. Either side may request additional time beyond the 152013
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minute time limit at the time the brief is filed. See § 12.36, infra. If the
request is granted, both sides will receive the additional time.
The Supreme Court is a hot court and is familiar with the findings
of fact, conclusions of law, and recommendations regarding discipline.
The Supreme Court will direct counsel to limit their comments to the
dispositive legal issues and the appropriate sanction.
Regardless of whether the disciplinary administrator files an appeal
or the respondent files exceptions from the final hearing report, the
disciplinary administrator always argues first and has the ultimate burden
of proof. Additionally, the disciplinary administrator may reserve rebuttal
time.
While oral argument before the Supreme Court is most effective
when presented by competent counsel for the respondent, the Supreme
Court does favor a statement by the respondent as to recognition of
the nature of the violation and the appropriate level of discipline. The
shortest and most succinct arguments are generally the most effective and
well received by the Supreme Court. Most positions can be effectively
stated in five to ten minutes.
PRACTICE NOTE: It is important to keep in mind
that there are only three issues involved in disciplinary
proceedings: the facts, the rule violations, and the
sanctions. The hearing panel is the fact finder, and the
findings have virtually never been set aside by the Supreme
Court. Rarely, the Supreme Court has concluded that a
particular violation found by the hearing panel has not
been established as a matter of law. Thus, the respondent
is well-advised to emphasize appropriate discipline to be
imposed rather than to hope for a factual substitution
by the Supreme Court.
The best opportunity the disciplinary administrator has to argue and
emphasize the facts fully is when the respondent has opened the door by
filing exceptions and a brief. Otherwise, the Supreme Court considers the
cold recitation of the facts contained in the hearing panel’s final hearing
report and does not conduct a closer factual review.
As to the level of discipline to be imposed, the Supreme Court is not
bound by the recommendation of the hearing panel. See Rule 212(f); In re
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Gershater, 270 Kan. 620, 625, 17 P.3d 929 (2001); and In re Jones, 252 Kan.
236, 239, 843 P.2d 709 (1992). The sanction suggested by the hearing panel
or requested by the disciplinary administrator is only a recommendation,
and the issue remains open at the Supreme Court level. The most effective
arguments requesting lighter sanctions include arguments which focus on
the presence of compelling mitigating factors.
§ 11.18 Supreme Court Opinions
Discipline of suspension or disbarment is effective immediately
upon the filing of the order with the clerk of the appellate courts unless
otherwise ordered by the Supreme Court. The respondent may file a
motion for rehearing or modification within 20 days. The filing of a
motion for rehearing or modification does not stay the effect of the order
until the Supreme Court rules otherwise. See Rule 212(g). No motion for
rehearing or modification has ever been granted by the Supreme Court, as
far as can be determined from the disciplinary records. On rare occasions,
the Supreme Court has granted remand to the hearing panel for additional
evidence and reconsideration of the final hearing report.
The final judgment of the Supreme Court cannot be attacked in a
United States District Court. The only available appeal is a direct petition
for writ of certiorari to the United States Supreme Court. No petition for a
writ of certiorari to the United States Supreme Court has ever been granted
with regard to disciplinary decisions of the Kansas Supreme Court.
Upon final resolution of each disciplinary complaint, the disciplinary
administrator notifies the complainant, the respondent, the ethics and
grievance committee assigned to investigate the complaint, and the
investigator assigned to investigate the complaint of the outcome.
Typically, the Supreme Court’s opinion imposing discipline on an
attorney is published in the Kansas Reports. However, Rule 203(a)(3)
provides that censure may or may not be published in the Kansas Reports.
In cases where discipline of suspension or disbarment is ordered by
the Supreme Court, the clerk of the appellate courts notifies the clerks of
all other state and federal courts in which the respondent is known to be
licensed. See Rule 224(e). Any discipline imposed by the Supreme Court
is also reported to the National Discipline Data Bank for dissemination to
other jurisdictions. Any pending disciplinary proceedings terminate upon
disbarment of the respondent. See Rule 217(b)(1)(C).
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Upon suspension or disbarment, the attorney must notify each
client in writing of the attorney’s inability to continue to represent or
undertake further representation within 14 days of the order or opinion.
Additionally, the attorney must inform his clients of their need to retain
other counsel. The attorney must provide written notification to all courts
and administrative bodies before whom there are pending proceedings, as
well as opposing counsel, of his or her inability to proceed in the matter
within 14 days of the order or opinion. Appropriate motions to withdraw
as counsel of record must also be filed within 14 days of the order or
opinion. See Rule 218(a).
Costs of the disciplinary proceedings, as certified by the disciplinary
administrator, are assessed against the respondent when the respondent
is found to have violated one or more rules. Costs include hearing panel
fees and expenses, witness fees and expenses, some investigative expenses,
transcript and deposition costs, and the docketing fee. If a disciplinary
proceeding is dismissed at any stage of the proceeding, the respondent is
not responsible for the costs of the action. See Rule 224(c).
§ 11.19 Additional Procedural Rules
Rule 224 contains additional procedural rules that are worth noting.
First, subsection (a) provides that time limitations included in the rules are
directory and not jurisdictional. Second, subsection (d) provides that any
deviation from the rules is not a defense to the disciplinary proceedings
absent actual prejudice to the respondent. In such cases, respondents
must show actual prejudice by clear and convincing evidence.
§ 11.20 Voluntary Surrender of License to Practice Law
Pursuant to Rule 217(b), an attorney facing charges of ethical
misconduct may voluntarily surrender his or her license to practice
law. When an attorney voluntarily surrenders and the attorney is facing
charges of ethical misconduct, the Supreme Court issues an order of
disbarment and the attorney’s name is stricken from the roll of licensed
Kansas attorneys. See Rule 217(b) and In re Rock, 279 Kan. 257, 26263, 105 P.3d 1290 (2005). Thereafter, the clerk of the appellate courts
notifies other jurisdictions as in other cases of suspension or disbarment.
See Rule 224(e).
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An example of a surrender letter appears at § 12.38, infra. Along
with the surrender letter, the attorney must send to the clerk of the
appellate courts his or her original bar certificate and the most recent
annual registration card. See Rule 217(a).
An attorney who is not under investigation and who does not
anticipate an investigation may also surrender if the attorney is in good
standing. When an attorney surrenders the attorney’s license when the
attorney is not under investigation and when an investigation is not
anticipated, the attorney’s name is stricken from the roll of attorneys. See
Rule 217(c).
§ 11.21 Reinstatement
Five years after the date of disbarment and three years after the date
of an indefinite suspension, an attorney may file a verified petition to
apply for an order of reinstatement. The petition must bear the original
case caption and number. The attorney is required to file with the clerk
of the appellate courts the original and eight copies of the petition, along
with a $1,250 filing fee. See Rule 219(a).
The petition must contain evidence that the attorney has been
rehabilitated. While the attorney is referred to as the respondent during
disciplinary proceedings, in reinstatement proceedings, the attorney is
considered the petitioner.
After a petition for reinstatement is filed, the Supreme Court
determines whether a sufficient period of time has elapsed since the
discipline was imposed, considering the gravity of the misconduct.
If insufficient time has elapsed or the gravity of the misconduct is
overwhelming, the petition is dismissed. See Rule 219(d)(1)(A) and In re
Russo, 244 Kan. 3, 765 P.2d 166 (1988).
If the Supreme Court finds sufficient time has elapsed, then the
clerk of the appellate courts forwards the petition to the disciplinary
administrator for investigation and hearing before a hearing panel of the
Kansas Board for Discipline of Attorneys. Rule 219(d)(1)(B).
The petitioner must establish all aspects of the reinstatement petition
by clear and convincing evidence. The petitioner must be able to establish
that the petitioner has paid the costs of the prior disciplinary proceedings
and that all notifications required by Rule 218 were made in a timely
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manner. Finally, the petitioner must establish that he or she has satisfied
claims made by clients in any other disciplinary cases. Rule 219(d)(4)(K).
PRACTICE NOTE: Hearing panels that hear
reinstatement petitions typically consist of review
committee members. Following the hearing on the
reinstatement petition, the hearing panel files a final
hearing report.
If the report recommends denial of the petition, the petitioner may
file exceptions within 21 days. At that point, or if the report recommends
approval of the petition, the matter stands submitted to the Supreme
Court. No briefs or oral arguments are permitted unless requested by the
Supreme Court. In reaching its decision, the Supreme Court considers
the petition, all exhibits admitted into evidence, the transcript of the
hearing, the report, and any exceptions filed. The Supreme Court may
order reinstatement with or without conditions or may deny the petition.
See Rule 219(f).
PRACTICE NOTE: As a statistical footnote, as far
as can be determined from disciplinary records, since
1950, only one attorney disbarred in Kansas has been
reinstated to the practice of law.
§ 11.22 Lawyers’ Fund for Client Protection
In 1993, the Kansas Supreme Court established the Lawyers’ Fund
for Client Protection to compensate clients who suffer economic loss as
a result of dishonest actions by active members of the Kansas bar. The
fund covers most cases in which lawyers have taken for their own use or
otherwise misappropriated clients’ money or other property entrusted to
them. The Fund does not cover losses resulting from lawyers’ negligence,
fee disputes, or cases of legal malpractice. Claimants for reimbursement
from the Fund are also required to report the misconduct of the attorney
to a county or district attorney or to the disciplinary administrator as a
condition precedent to filing a claim. See Rule 227 and Lawyers’ Fund
for Client Protection Rule 12.E. Further information on the Lawyers’
Fund for Client Protection may be obtained by contacting the clerk of
the appellate courts.
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II.
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JUDICIAL DISCIPLINE
§ 11.23 History
The Kansas Commission on Judicial Qualifications was established
by the Supreme Court of the State of Kansas on January 1, 1974. The
Commission, created under the authority granted by Article III, Section
15 of the Kansas Constitution and in the exercise of the inherent powers
of the Supreme Court, is charged with assisting the Supreme Court in the
exercise of the court’s responsibility in judicial disciplinary matters.
The Commission consists of fourteen members, including six active
or retired judges, four lawyers, and four non-lawyers. All members are
appointed by the Supreme Court and may serve no more than three
consecutive four-year terms. See Rule 602(b). The fourteen members
are divided into two seven-person panels, consisting of three judges, two
lawyers, and two non-lawyers. Each panel meets every other month,
alternating with the other panel. See Rule 602(e). The full Commission
meets in January and upon call.
§ 11.24 Jurisdiction/Governing Rules
The Commission’s jurisdiction extends to approximately 500 judicial
positions including justices of the Supreme Court, judges of the Court
of Appeals, judges of the district courts, district magistrate judges, and
municipal judges. This number does not include judges pro tempore and
others who, from time to time, may be subject to the Code of Judicial
Conduct.
The Supreme Court Rules governing operation of the Commission
and standards of conduct are found in the Kansas Court Rules Annotated,
Rules 602 through 627.
§ 11.25 Staff
The Clerk of the Supreme Court serves as secretary to the Commission
under Rule 603. The secretary acts as custodian of the official files and
records of the Commission and directs the daily operation of the office.
A deputy clerk manages the operation of the office.
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The Commission also retains an examiner, a member of the Kansas
Bar who investigates complaints, presents evidence to the Commission,
and participates in proceedings before the Supreme Court.
§ 11.26 Initiating a Complaint
The Commission is charged with conducting an investigation when
it receives a complaint indicating that a judge has failed to comply with
the Code of Judicial Conduct or has a disability that seriously interferes
with the performance of judicial duties. See Rule 609.
Any person may file a complaint with the Commission. Initial
inquiries may be made by telephone, by letter, by email, or by visiting
the Appellate Clerk’s Office personally. All who inquire are given a copy
of the Supreme Court Rules Relating to Judicial Conduct, a brochure
about the Commission, and a complaint form. For complaint form, see
§ 12.39, infra. The complainant is asked to set out the facts and to state
specifically how the complainant believes the judge has violated the Code
of Judicial Conduct. Very often, the opportunity to voice the grievance
is sufficient, and the Commission never receives a formal complaint. In
any given year, one-fourth to one-third of the initial inquiries will result
in a complaint being filed.
The remainder of the complaints filed come from individuals
already familiar with the Commission’s work or who have learned about
the Commission from another source. Use of the standard complaint
form is encouraged but not mandatory. If the complaint received is of a
general nature, the Commission’s secretary will request further specifics.
In addition to citizen complaints, the Commission may investigate
matters of judicial misconduct on its own motion. Referrals are also
made to the Commission through the Office of Judicial Administration
and the Office of the Disciplinary Administrator.
Referrals are made through the Office of Judicial Administration
on personnel matters involving sexual harassment. The Kansas
Court Personnel Rules provide that, if upon investigation the Judicial
Administrator finds probable cause to believe an incident of sexual
harassment has occurred involving a judge, the Judicial Administrator will
refer the matter to the Commission on Judicial Qualifications. See Kansas
Court Personnel Rules 9.4(e).
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The Disciplinary Administrator refers complaints to the Commission
if investigation into attorney misconduct implicates a judge. There is a
reciprocal sharing of information between the two offices.
§ 11.27 Commission Review and Investigation
When written complaints are received, all are mailed to a panel of the
Commission for review at its next meeting. In the interim, if it appears
that a response from the judge would be helpful to the Commission, the
secretary may request the judge to submit a voluntary response. With that
additional information, the panel may be able to consider a complaint and
reach a decision at the same meeting.
All complaints are placed on the agenda, and the panel determines
whether they will be docketed or remain undocketed. A docketed
complaint is given a number and a case file is established.
Undocketed complaints are those that facially do not state a violation
of the Code; no further investigation is required.
Appealable matters constitute the majority of the undocketed
complaints and arise from a public misconception of the Commission’s
function. The Commission does not function as an appellate court.
Examples of appealable matters that are outside the Commission’s
jurisdiction include: matters involving the exercise of judicial discretion,
particularly in domestic cases; disagreements with the judge’s application
of the law; and evidentiary or procedural matters, particularly in criminal
cases.
Many complaints address the judge’s demeanor, attitude, degree of
attention, or alleged bias or prejudice. These are matters in which the
secretary is likely to request a voluntary response from the judge and,
based on that response, the panel in some instances determines there has
clearly been no violation of the Code.
These undocketed complaints are dismissed with an appropriate
letter to the complainant and to the judge, if the judge has been asked to
respond to the complaint. Judges are not routinely notified of undocketed
complaints.
Docketed complaints are those in which a panel feels that further
investigation is warranted.
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A panel has a number of investigative options once it dockets a
complaint. Docketed complaints may be assigned to a subcommittee for
review and report at the next meeting. These complaints may be referred
to the Commission Examiner for investigation and report. Finally, the
panel may ask for further information or records from the judge.
PRACTICE NOTE: A panel of the Commission,
seeking further information from a judge, appreciates
candor and will often consider in mitigation acceptance
of responsibility and expression of regret.
Failure to cooperate in an investigation or use of dilatory tactics may
be considered as a separate Code violation. See Rule 609.
§ 11.28 Disposition of Docketed Complaints
After investigation of docketed complaints, the panel may choose a
course of action short of filing formal proceedings.
A complaint may be dismissed after investigation. On docketing,
there appeared to be some merit to the complaint, but after further
investigation the complaint is found to be without merit.
A complaint may be dismissed after investigation with a letter of
informal advice. The panel finds no violation in the instant complaint,
but the judge is advised to avoid such situations in the future. Such letters
have been issued when alcohol consumption appears problematic or
when there is a strong suggestion of inappropriate personal comment.
See Rule 610.
Letters of caution are issued when some infraction of the Code
has occurred, but the infraction does not involve a significant violation
or course of conduct sufficient to warrant further proceedings. Such
letters may, for example, address isolated instances of delay, ex parte
communication, or discourtesy to litigants or counsel. See Rule 610.
A cease and desist order may be issued when the panel finds a factually
undisputed violation of the Code that represents a significant violation
or violations representing a continuing course of conduct. Cease and
desist orders may be either private or public. See Rule 611. The judge
must agree to comply by accepting the order, or formal proceedings will
be instituted. Examples of conduct resulting in cease and desist orders
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include: activity on behalf of a political candidate, intervention with a
fellow judge on behalf of family or friends, or ex parte communications.
Upon disposition of any docketed complaint, the judge and the
complainant are notified of the Commission’s action. Other interested
persons may be notified within the Commission’s discretion.
§ 11.29 Confidentiality
The panel assigned a complaint conducts investigations, often
contacting the judge involved as well as witnesses. The Commission and
its staff are bound by a rule of confidentiality unless public disclosure is
permitted by the Rules Relating to Judicial Conduct or by order of the
Supreme Court. See Rule 607(a). One exception to the confidentiality
rule exists if the panel gives written notice to the judge, prior to the judge’s
acceptance of a cease and desist order, that the order will be made public.
Rule 611(a).
Other narrowly delineated exceptions to the rule of confidentiality
exist. Rule 607(d)(3) provides a specific exception to the rule of
confidentiality with regard to any information that the Commission or
a panel considers relevant to current or future criminal prosecutions
or ouster proceedings against a judge. Rule 607 further permits a
waiver of confidentiality, in the Commission’s or panel’s discretion, to
the Disciplinary Administrator, the Judges Assistance Committee, and
to the Supreme Court Nominating Commission, the District Judicial
Nominating Commissions, and the Governor with regard to nominees
for judicial appointments.
The rule of confidentiality does not apply to the complainant or to
the respondent. See Rule 607(c).
§ 11.30 Formal Proceedings
During the investigation stage prior to the filing of the notice of
formal proceedings, the judge is advised by letter that an investigation is
underway. The judge then has the opportunity to present information to
the examiner. Rule 609.
PRACTICE NOTE: A judge would be well-advised
to be represented by counsel before responding to a
609 letter, which represents a step in the investigation
beyond the panel’s initial request for response.
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Disciplinary Proceedings
If a panel institutes formal proceedings, specific charges stated in
ordinary and concise language are submitted to the judge. The judge has
an opportunity to answer, and a hearing date is set. Rule 611(b); Rule
613. The hearing on that notice of formal proceedings is conducted by
the other panel, which has no knowledge of the investigation or prior
deliberations.
PRACTICE NOTE: A prehearing conference may be
held to further define issues or to facilitate stipulations.
Scheduling issues such as dates for submission of
witness and exhibit lists as well as a date of hearing may
be discussed.
The hearing on a notice of formal proceedings is a public hearing on
the record. The judge is entitled to be represented by counsel at all stages
of the proceedings, including the investigative phase prior to the filing
of the notice of formal proceedings if the judge so chooses. The rules
of evidence applicable to civil cases apply at formal hearings. Procedural
rulings are made by the chair and consented to by other members unless
one or more calls for a vote. Any difference of opinion with the chair is
controlled by a majority vote of those panel members present.
The Commission Examiner presents the case in support of the
charges in the notice of formal proceedings. At least five members of
the panel must be present when evidence is introduced. A vote of five
members of the panel is required before a finding may be entered that
any charges have been proven. The charges must be proven by clear and
convincing evidence. Rule 620(a); In re Rome, 218 Kan. 198, Syl. ¶ 9, 542
P.2d 676 (1975).
If the panel finds the charges proven, it can admonish the judge,
issue an order of cease and desist, or recommend to the Supreme Court
the discipline or compulsory retirement of the judge. Discipline means
public censure, suspension, or removal from office. Rule 620.
In all proceedings resulting in a recommendation to the Supreme
Court for discipline or compulsory retirement, the panel is required to
make written findings of fact, conclusions of law, and recommendations
that shall be filed and docketed by the Clerk of the Supreme Court as a
case. Rule 622. The respondent judge then has the opportunity to file
written exceptions to the panel’s report within 20 days after receipt of
the clerk’s citation directing a response. A judge who does not wish to
2013
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11-27
file exceptions may reserve the right to address the Supreme Court with
respect to disposition of the case. Rule 623.
If exceptions are taken, a briefing schedule is set, and the rules of
appellate procedure apply. After briefs are filed, argument is scheduled
before the Supreme Court at which time respondent appears in person
and, at respondent’s discretion, by counsel. If exceptions are not taken, the
panel’s findings of fact and conclusions of law are conclusive and may not
later be challenged by respondent. The matter is set for hearing before the
Supreme Court, at which time the respondent appears in person and may
be accompanied by counsel, but only for the limited purpose of making
a statement with respect to the discipline to be imposed. In either case,
the Supreme Court may adopt, amend, or reject the recommendations of
the panel. Rule 623.
2013
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2013
Disciplinary Proceedings
Forms
12-
CHAPTER 12
Forms
§ 12.1 Application to Take a Civil Interlocutory Appeal Under K.S.A. 60-2102(c)
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
[Insert Name],
Plaintiff,
v.
[Insert Name],
Defendants.
)
)
)
)
) [Insert District Court Case Number]
)
)
)
)
)
APPLICATION TO TAKE A CIVIL INTERLOCUTORY APPEAL UNDER
K.S.A. 60-2102(c)
The defendant in this action, which arises from an automobile collision, seeks
an interlocutory appeal because the district court misinterpreted the statute of
limitations.
1.
Background. An automobile accident occurred between the plaintiff, Wilma
Driver, and the defendant, Betty B. Good. Driver has filed suit against Good in the district
court of [Insert Name] County, Kansas.
2.
Authority. Supreme Court Rule 4.01 and K.S.A. 60-2102(c).
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3.
Argument.
The defendant Good filed a motion to dismiss Driver’s claim for failure to state a claim upon
which relief could be granted, alleging Driver failed to file her claim within the two year statute of
limitations of K.S.A. 60-513. Plaintiff alleged that K.S.A. 60-206(a) controlled and that she had filed
her petition within the statute of limitations.
Following oral argument, the Court on [Insert Date], entered an Order denying the defendant’s
Motion to Dismiss. The Court held that K.S.A. 60-206(a) controlled the calculation of the statute
of limitations under K.S.A. 60-513 and found the plaintiff had filed her petition within the allowed
time.
The Court made the findings required by K.S.A. 60-2102(b) and stayed the proceedings until
such time as the Kansas Court of Appeals should accept or deny an interlocutory appeal filed in the
matter. A certified, file-stamped copy of the Journal Entry is attached as Exhibit “A”.
4. The controlling questions of law are:
A. Whether K.S.A. 60-206(a) applies in calculating the statute of limitations under
K.S.A. 60-513?
B. Whether a calendar year, an anniversary year, or a 365-day period is used in calculating
the statute of limitations under K.S.A. 60-513?
5. Good contends that K.S.A. 60-206(a) does not apply to calculating the statute of limitations
under K.S.A. 60-513.
6. Driver contends that K.S.A. 60-206(a) controls and that an anniversary year must be used in
calculating the statute of limitations under K.S.A. 60-513.
7. Resolution of the controlling questions of law would determine whether the plaintiff ’s
claims were barred by the statute of limitations under K.S.A. 60-513 and, therefore, an immediate
appeal may materially advance the ultimate termination of the litigation.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
Forms
12-
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Application was sent by United States mail, postage
prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: Most applications will be more factually complex than the
form and require citation to case law as well as statutory authority, but the format
remains the same. The application must be accompanied by the district court order
from which appeal is sought to be taken, and that order must include the findings
required by K.S.A. 60-2102(c). See Rule 4.01.
A similar format should be adopted for the civil interlocutory appeal under Rule
4.01A.
2013
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§ 12.2 Petition for Judicial Review of an Order of the Court of Tax Appeals
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Application of XYZ Corp. for Exemption from
Ad Valorem Taxation.
)
)
)
[Insert COTA Docket Number]
PETITION FOR JUDICIAL REVIEW OF AN ORDER OF
THE COURT OF TAX APPEALS
XYZ Corporation asks the Court of Appeals for judicial review of all adverse rulings
made by the Court of Tax Appeals in that Court’s order, dated [Insert Date], and that
Court’s subsequent order denying reconsideration, dated [Insert Date].
The petitioner states:
1. Name and mailing address of the petitioner.
[Insert information]
2. Name and mailing address of the agency whose action is at issue.
[Insert information]
3. Authority. K.S.A. 74-2426, K.S.A. 77-614, and Kansas Supreme Court Rule 9.03.
4. Identification of the agency action at issue, together with a duplicate copy, summary, or brief description of
the agency action.
Petitioner requested ad valorem taxation exemption for certain real property under K.S.A.
79-201b Sixth. Petitioner claimed that the subject property satisfied the statutory requirements, which
require the operator to be a not-for-profit corporation and that the property be used exclusively for
the housing of mentally ill, retarded, or other handicapped persons.
On [Insert Date], the Court of Tax Appeals issued an order in which it ruled that the operator
of the subject property could not meet the statutory requirement of being a not-for-profit corporation
and that the subject property was not being used exclusively for an exempt purpose because the
petitioner was receiving a benefit in the form of Internal Revenue Code Section 42 low income
housing tax credits. Petitioner filed a motion for reconsideration on [Insert Date]. The Court of Tax
2013
12- Forms
Appeals issued an order on [Insert Date], denying the motion for reconsideration. The Court of Tax
Appeals reversed the ruling as to the operator, determining the project was operated by a not-forprofit entity as contemplated by K.S.A. 79-201b Sixth. However, the Court of Tax Appeals reaffirmed
its prior decision that the subject property was not being used exclusively for an exempt purpose.
Certified copies of the order of the Court of Tax Appeals, the petition for reconsideration,
and the Court of Tax Appeals’ order on the petition for reconsideration are attached.
5. Identification of persons who were parties in any adjudicative proceedings that led to the agency action.
[Insert Information]
6. Facts to demonstrate that the petitioner is entitled to obtain judicial review.
This is a final order of the Court of Tax Appeals and constitutes final agency action. Any party
choosing to appeal this order must do so by filing a petition for judicial review within 30 days from the
date of certification of this order. See K.S.A. 77-613(c). The petition for judicial review must be filed
with the Kansas Court of Appeals. K.S.A. 7426(c)(2).
7. Reasons why relief should be granted.
The Court of Tax Appeals erroneously ruled, as a matter of law, that the subject property
was not entitled to exemption under K.S.A. 79-201b Sixth by virtue of the property owner receiving
Internal Revenue Code Section 42 low income housing tax credits in respect of certain construction
and other acquisition costs attached to the property.
8. The type and extent of relief petitioner requests.
Sixth.
A determination that the subject property is entitled to exemption under K.S.A. 79-201b
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
Forms
12-
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Petition for Judicial Review was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: See § 12.4, infra, to request certification of the record.
The petition for judicial review must be in compliance with K.S.A. 77-614. Some
petitions may be more factually complex than the form and require citation to case
law as well as statutory authority, but the format remains the same.
2013
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2013
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12-
§ 12.3 Petition for Judicial Review—Workers Compensation Cases
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
[Insert Name],
Claimant/[ Insert Appellate Designation],
vs.
[Insert Name],
Respondent/[Insert Appellate Designation],
and
[Insert Name],
Insurance Carrier/[Insert Appellate Designation],
)
)
)
)
) [Insert Workers Comp Docket Number]
)
)
)
)
)
)
)
)
)
)
)
PETITION FOR JUDICIAL REVIEW OF A DECISION OF THE WORKERS
COMPENSATION APPEALS BOARD
[Insert Name of Petitioner] asks the Court of Appeals for judicial review of the
decision of the Workers Compensation Appeals Board.
The petitioner states:
1. Name and mailing address of the petitioner.
[Insert information]
2. Name and mailing address of the agency whose action is at issue.
[Insert information]
3. Authority. K.S.A. 44-556, K.S.A. 77-614, and Supreme Court Rule 9.04.
2013
12-10 Forms
4. Identification of the agency action at issue, together with a duplicate copy, summary, or brief description of
the agency action.
The Workers Compensation Appeals Board entered an order dated [Insert date] in which the
Board awarded workers compensation benefits to claimant, finding that his injury on [Insert date]
while riding a go-cart at a recreational event fell within the course and scope of his employment with
respondent.
Certified copies of the order of the administrative law judge, the request for Board review, and
the order of the Board are attached.
5. Identification of persons who were parties in any adjudicative proceedings that led to the agency action.
[Insert information]
6. Facts to demonstrate that the petitioner is entitled to obtain judicial review.
The administrative law judge entered an order dated [Insert date] granting claimant benefits
and ruling that his injury did fall within the scope of employment as an exception to K.S.A. 44-508(f).
Thereafter, petitioner filed a notice of appeal dated [Insert date] with the Workers Compensation
Appeals Board, completed briefs, and orally argued the matter. The Board affirmed the ruling of the
administrative law judge in an order dated [Insert date]. Under K.S.A. 44-556, petitioner is allowed to
appeal the decision of the Board to the Court of Appeals.
7. Reasons why relief should be granted.
Petitioner states that the Workers Compensation Appeals Board erred in finding that the injury
of claimant was compensable. Among other things, the Board failed to follow the strict statutory
language of K.S.A. 44-508(f). The Board considered other factors in making its determination not
included in the language of K.S.A. 44-508(f). The Board found an implied duty where the greater
and overwhelming weight of the evidence would not allow such conclusion. In addition, there was
insufficient evidence to support the finding of the Board that an implied duty existed for claimant to
attend the recreational/social event where he was injured.
8. The type and extent of relief petitioner requests.
Petitioner requests the Court of Appeals enter an order finding that the Workers Compensation
Appeals Board erred as a matter of law in finding that the injury to claimant was work-related and that
benefits should be awarded for the injury.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
Forms
12-11
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Petition for Judicial Review was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: See § 12.4, infra, to request certification of the record.
The petition for judicial review in workers compensation cases is filed in the Court
of Appeals. See K.S.A. 44-556(a) and Rule 9.04.
The petition for judicial review must be in compliance with K.S.A. 77-614. Some
petitions may be more factually complex than the form and require citation to case
law as well as statutory authority, but the format remains the same.
2013
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2013
Forms
12-13
§ 12.4 Request for Certification of Record—Workers Compensation Cases
BEFORE THE DIVISION OF WORKERS COMPENSATION
FOR THE STATE OF KANSAS
[Insert Name],
Claimant/[Insert Appellate Designation],
vs.
[Insert Name],
Respondent/[Insert Appellate Designation],
and
[Insert Name],
Insurance Carrier/[Insert Appellate Designation],
)
)
)
)
) Docket No. [Insert Number]
)
)
)
)
)
)
)
)
)
)
)
REQUEST FOR CERTIFICATION OF RECORD
[Insert Name], Petitioner, requests the Workers Compensation Appeals Board to certify the
record of the proceedings in this matter and transmit the record to the clerk of the appellate
courts.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-14 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Request for Certification of Record was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: A separate request should be made for preparation of a
transcript of any hearing before the Board. The Board will not transmit the record
to the clerk of the appellate courts until all transcripts are complete.
When appeals are taken from the Court of Tax Appeals to the Court of Appeals
under Rule 9.03, a similar procedure applies, and this form can be adapted to those
appeals.
2013
Forms
12-15
§ 12.5 Notice of Appeal—Supreme Court
IN THE [Insert Number] JUDICIAL DISTRICT
DISTRICT COURT OF [Insert Name] COUNTY, KANSAS
(CRIMINAL)(CIVIL) DEPARTMENT
[Insert Name],
)
)
Plaintiffs-Appellees,
)
)
vs.
) [Insert District Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
NOTICE OF APPEAL
[Name of appealing party or parties] appeal(s) from [designate the judgment or part of the
judgment or other appealable order] to the Supreme Court of the State of Kansas.
This appeal is directly to the Supreme Court on the ground that [state the ground on which
direct appeal is permitted, including citation to statutory authority. For example, that the district
court declared K.S.A. 60-3701 et seq., unconstitutional. See K.S.A. 60-2101(b)].
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-16 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Notice of Appeal was sent by United States Mail,
postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: The notice of appeal to the Supreme Court, unlike the
Court of Appeals, must state the ground on which appeal to the Supreme Court
is permitted, including citation to the statutory authority which permits the direct
appeal.
Appellate review is limited to the rulings specified in the notice of appeal. See
§ 7.1, supra.
2013
Forms
12-17
§ 12.6 Notice of Appeal—Court of Appeals
IN THE [Insert Number] JUDICIAL DISTRICT
DISTRICT COURT OF [Insert Name] COUNTY, KANSAS
(CRIMINAL)(CIVIL) DEPARTMENT
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert District Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
NOTICE OF APPEAL
[Name the appealing party or parties] appeal(s) from [designate the judgment or part of the
judgment or other appealable order] to the Court of Appeals of the State of Kansas.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-18 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Notice of Appeal was sent by United States Mail,
postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: Appellate review is limited to the rulings specified in the
notice of appeal. See § 7.1, supra.
2013
Forms
12-19
§ 12.7 Notice of Cross-Appeal
IN THE [Insert Number] JUDICIAL DISTRICT
DISTRICT COURT OF [Insert Name] COUNTY, KANSAS
(CRIMINAL)(CIVIL) DEPARTMENT
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert District Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
NOTICE OF CROSS-APPEAL
[Name the cross-appealing party or parties] cross-appeals from [designate the judgment or
part of the judgment or other appealable order] to the Court of Appeals of the State of Kansas.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-20 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Notice of Cross-Appeal was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-21
§ 12.8 Fax Transmission Sheet
FAX TRANSMISSION SHEET
DATE: _____________________________
TO:
Clerk of the Appellate Courts
FAX Number: (785 ) 296-1028
FROM:
Attorney or Party Without Attorney (Name and Address)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
Kansas Attorney Registration Number: ________________________________
Telephone Number: (
) ______-__________
FAX Number: (
) ______-__________
Attorney for (Name): _____________________________________________
RE:
Appellate Case Number: Caption: ____________________________________________________________
vs
___________________________________________________________________
Name of the Document Being Transmitted:
___________________________________________________________________
Number of fax pages excluding this cover page:
___________________________________________________________________
OTHER INSTRUCTIONS:
2013
12-22 Forms
PRACTICE NOTE: Routine motions, pleadings, or correspondence that do
not require a filing fee will be accepted by the appellate courts for filing by fax
if the document, together with any supporting documentation, does not exceed
ten (10) pages. Briefs and petitions for review may not be filed by fax. The fax
transmission sheet and the certificate of service are not included in the 10-page
limitation.
Fax only one copy; the clerk of the appellate courts will provide any additional
copies required. Do not mail the original or any additional copies. See Rule
1.08.
2013
Forms
12-23
§ 12.9 Motion for Release After Conviction
IN THE (SUPREME COURT) (COURT OF APPEALS) OF THE STATE OF KANSAS
STATE OF KANSAS,
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
MOTION FOR RELEASE AFTER CONVICTION
The defendant seeks an order setting an appeal bond.
1.
Background. Defendant was convicted of the following offense(s): Aggravated robbery,
K.S.A. 21-3427. Defendant was sentenced as follows: 61 months with 36 months
postrelease supervision.
2.
Authority. K.S.A. 22-2804 and Supreme Court Rule 5.06.
3.
The district court has denied defendant’s request for an appeal bond (see attached journal
entry filed [Insert Date]). [Briefly describe the district court’s reasons for denying the
bond.]
4.
The Court should consider the defendant’s family ties, employment possibilities, financial
resources, length of residence in the community, prior convictions, and record of
appearance during trial (including failure to appear). [Give specific information about
this defendant for each factor mentioned.]
5.
[Note whether any previous bonds have been set in the case, including the amount.]
2013
12-24 Forms
The Defendant asks the Court to set an appropriate appeal bond pending a decision in this
case.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Release After Conviction was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-25
§ 12.10 Docketing Statement—Civil
IN THE (SUPREME COURT) (COURT OF APPEALS) OF THE STATE OF KANSAS
Case Caption:
County Appealed From: ____________________________
District Court Case No(s).: __________________________
Proceeding Under Chapter: __________________________
Party Filing Appeal: ________________________________
Party or Parties who will Appear as Appellees: ____________
________________________________________________
DOCKETING STATEMENT—CIVIL
The docketing statement is used by the court to determine jurisdiction and to make calendar
assignments under Rules 7.01(c) and 7.02(c). This is not a brief and should not contain argument or
procedural motions.
Civil Classification: From the list of civil topic sub-types listed at the end of this form,
choose the one which best describes the primary issue in this appeal.
____________________________________________________________________
1.
Proceedings in the District Court:
a. Trial Judge from whose decision this appeal is taken: ______________________
2.
b. List any other judge who has signed orders or conducted hearings in this matter:
________________________________________________________________
c. Was this case disposed of in the district court by:
______ Jury trial
______ Bench trial
______ Summary Judgment
______ Dismissal
______ Other
d. Length of trial, measured in days (if applicable):____________________________
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12-26 Forms
e.
f.
g.
State the name of each court reporter or transcriptionist who has reported or
transcribed any or all of the record for the case on appeal. (This is not a substitute
for a request for transcript served on the individual reporter or transcriptionist
under Rule 3.03.)
________________________________________________________________
________________________________________________________________
________________________________________________________________
State the legal name of all entities that are NOT listed in the case caption (including
corporations, associations, parent, subsidiary, or affiliate business entities) but are
parties or have a direct involvement in the case on appeal:
________________________________________________________________
________________________________________________________________
________________________________________________________________
State the name, address, telephone number, fax number, and e-mail address of every
attorney who represented a party in district court if that attorney’s name does NOT
appear on the certificate of service attached to this docketing statement. Clearly
identify each party represented.
________________________________________________________________
________________________________________________________________
________________________________________________________________
3. Jurisdiction:
a.
Date journal entry or judgment form filed:
a.
Date journal entry, judgment form, or other appealable
order filed:
b.
Is the order appealed from a final order, i.e., does it
dispose of the action as to all claims by all parties? c.
If the order is not a final disposition as to all claims by
all parties, did the district court direct the entry of judgment
under K.S.A. 60-254(b)?
If not, state the basis on which the order is appealable.
_______________________________________________
d.
Date any posttrial motion filed
e.
Date disposition of any posttrial motion filed:
f.
Date notice of appeal filed in district court:
g.
Other relevant dates necessary to establish this court’s
jurisdiction to hear the appeal, i.e., decisions of administrative
agencies or municipal courts and appeals therefrom:
__________________________________________________
__________________________________________________
__________________________________________________
h.
Statutory authority for appeal:
2013
___________
___________
___________
___________
___________
___________
___________
___________
Forms
i.
12-27
Are there any proceedings in any other court or administrative
agency, state or federal, which might impact this case
or this court having jurisdiction (yes or no)?
___________
If “yes,” identify the court or agency in which the related
proceeding is pending. List the case captions and the case or
docket numbers.
________________________________________________________________
________________________________________________________________
________________________________________________________________
4. Constitutional Challenges to Statutes or Ordinances:
Was any statute or ordinance found to be unconstitutional
by the district court (yes or no)?
If “yes,” what statute or ordinance?
___________
___________
5. Related Cases/Prior Appeals:
a.
Is there any case now pending or about to be filed in the Kansas appellate courts
which:
(1) Arises from substantially the same case as this
appeal (yes or no)?
___________
If “yes,” give case caption and docket number.
___________________________________________________________
(2) Involves an issue that is substantially the same as, similar
to, or related to an issue in this appeal (yes or no)?
___________
If “yes,” give case caption and docket number.
___________________________________________________________
b.
Has there been a prior appeal involving this case or
controversy (yes or no)?
___________
If “yes,” give case caption and docket number.
________________________________________________________________
6. Brief statement (less than one page), without argument, of the material facts. This is not
intended to be a substitute for the factual statement that will appear in the brief.
7. Concise statement of the issues proposed to be raised. You will not be bound by this statement
but should include issues now contemplated. Avoid general statements such as “the judgment
is not supported by the law.”
2013
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Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
Date:__________________________
ATTACH PROOF OF SERVICE
(List all parties served, including name, address, and
who they represent.)
CIVIL TOPIC SUB-TYPES: Select the one sub-type which best describes this appeal.
See Question 1 above.
Administrative — KS Corporation
Commission
Administrative — Licensing
Administrative — Public Utility Rate Case
Administrative — Taxation
Administrative — Workers Compensation
Administrative — Other
Certified Question
Children — Adoption
Children — CINC
Children — Termination of Parental Rights
Conservators/Conservatorships
Constitutional Law
Contracts
Creditors and Debtors
Damages — Personal Injury
Damages — Property
Damages — Punitive
Divorce
Election Contest
Eminent Domain
Employment
Governmental Immunity
Habeas — appeal from district court
Insurance
Jurisdiction
Juvenile Offenders Code
K.S.A. 60-1507
Libel and Slander
Mandamus — appeal from district court
Negligence
Oil and Gas
Personal Property
Probate
Procedure
Quo Warranto — appeal from district
court
Real Property
Statutory Interpretation or Construction
Teacher Employment/Due Process
Torts (specify sub-type)
Wrongful Death
Zoning
Other (please specify): _________________
PRACTICE NOTE: Docketing statement forms are available in a fillable pdf
format in the online version of this handbook at www.kscourts.org.
2013
Forms
12-29
§ 12.11 Docketing Statement—Civil Cross-Appeal
IN THE (SUPREME COURT) (COURT OF APPEALS) OF THE STATE OF KANSAS
Case Caption: County Appealed From: _____________________________
District Court Case No(s).: __________________________
Party Filing Cross-Appeal: ___________________________
Party or Parties who will Appear as
Cross-Appellees: ________________________________
DOCKETING STATEMENT—CIVIL—CROSS-APPEAL
The docketing statement is used by the court to make calendar assignments under Rules 7.01(c)
and 7.02(c). This is not a brief and should not contain argument or procedural motions.
1.
Date notice of cross-appeal filed in district court: ___________________________
2.
Brief statement (less than one page), without argument, of the facts material to the
cross-appeal. This is not intended to be a substitute for the factual statement which
will appear in the brief.
3.
Concise statement of the issues proposed to be raised. You will not be bound by this
statement but should include issues now contemplated. Avoid general statements
such as “the judgment is not supported by the law.”
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
Date:__________________________
ATTACH PROOF OF SERVICE
(List all parties served, including name, address, and
who they represent.)
2013
12-30 Forms
PRACTICE NOTE: Docketing statement forms are available in a fillable pdf
format in the online version of this handbook at www.kscourts.org.
2013
Forms
12-31
§ 12.12 Docketing Statement—Criminal
IN THE (SUPREME COURT) (COURT OF APPEALS) OF THE STATE OF KANSAS
Case Caption: County Appealed From: _____________________________
District Court Case No(s).: __________________________
Party Filing Appeal: ________________________________
DOCKETING STATEMENT—CRIMINAL
The docketing statement is used by the court to determine jurisdiction and to make calendar
assignments under Rules 7.01(c) and 7.02(c). This is not a brief and should not contain argument
or procedural motions.
1.
Criminal Classification:
a.
Conviction of (offense[s], statute[s], and classification[s] of crime[s]):
___________________________________________________________
b.
2.
Date of offense(s) committed:___________________________________
Proceedings in the District Court:
a.
Trial judge from whose decision this appeal is taken: ___________
b.
List any other judge who has signed orders or conducted hearings in this
matter:
___________________________________________________________
c.
Was this case disposed of in the district court by:
____ Jury trial
____ Bench trial
____ Plea
____ Dismissal
d.
Length of trial, measured in days (if applicable):
___________
2013
12-32 Forms
e.
f.
3.
2013
State the name of each court reporter or transcriptionist who has reported
or transcribed any or all of the record for the case on appeal. (This is not
a substitute for a request for transcript served on the individual reporter or
transcriptionist under Rule 3.03.)
___________________________________________________________
___________________________________________________________
___________________________________________________________
State the name, address, telephone number, fax number, and e-mail address
of any attorney who represented a party in the district court if that attorney’s
name does NOT appear on the certificate of service attached to this docketing
statement. Clearly identify each party represented.
___________________________________________________________
___________________________________________________________
___________________________________________________________
Jurisdiction:
a.
Date sentence was pronounced from the bench:
___________
b.
Date notice of appeal filed in district court:
___________
c.
Custodial status:
(1)
Is the defendant subject to appeal bond or
incarcerated?
___________
(2) Earliest possible release date, if incarcerated:
If sentencing is challenged on appeal, it is the
State’s obligation to notify the clerk of the
appellate courts in writing of any change
in the custodial status of the defendant during
the pendency of the appeal. See Rule 2.042.
___________
d.
Statutory authority for appeal:
___________
e.
Are there any co-defendants (yes or no):
___________
If “yes,” what are their names?
___________________________________________________________
f.
Are there any proceedings in any other court or
administrative agency, state or federal, which might
impact this case or this court having jurisdiction
(yes or no)?
___________
If “yes,” identify the court or agency in which the related
proceeding is pending.
List the case captions and the case or docket numbers.
___________________________________________________________
___________________________________________________________
___________________________________________________________
Forms
4.
Constitutional Challenges to Statutes or Ordinances:
Was any statute or ordinance found to be unconstitutional
by the district court (yes or no)?
If “yes,” what statute or ordinance?
5.
Related Cases/Prior Appeals:
a.
Is there any case now pending or about to be filed in
the Kansas appellate courts which:
(1)
Arises from substantially the same case as this
appeal (yes or no)?
___________
If “yes,” give case caption and docket number.
_____________________________________________________
(2)
Involves an issue that is substantially the same as,
similar to, or related to an issue in this appeal
(yes or no)?
___________
If “yes,” give case caption and docket number.
_____________________________________________________
b.
Has there been a prior appeal involving this case
or controversy (yes or no)?
___________
If “yes,” give caption and docket number.
_____________________________________________________
6.
Brief statement (less than one page), without argument, of the material facts. This
is not intended to be a substitute for the factual statement which will appear in the
brief.
7.
Concise statement of the issues proposed to be raised. You will not be bound by this
statement but should include issues now contemplated. Avoid general statements
such as “the judgment is not supported by the law.”
12-33
___________
___________
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
Date:__________________________
ATTACH PROOF OF SERVICE
(List all parties served, including name, address, and
who they represent.)
2013
12-34 Forms
PRACTICE NOTE: Docketing statement forms are available in a fillable pdf
format in the online version of this handbook at www.kscourts.org.
2013
Forms
12-35
§ 12.13 Answer to Docketing Statement
IN THE (SUPREME COURT) (COURT OF APPEALS) OF THE STATE OF KANSAS
Case Caption:
Appellate Court No.:__________________
DOCKETING STATEMENT—ANSWER
The docketing statement is used by the court to determine jurisdiction and to make calendar
assignments under Rules 7.01(c) and 7.02(c). The docketing statement and answer are not briefs.
The answer to the docketing statement should consist only of a concise statement of additional
facts or clarification of issues which the appellee or cross-appellee believes are necessary to
provide the court a fair summary of the case. If the statement of facts and issues in the docketing
statement is sufficient, there is no need to file an answer. THE ANSWER SHOULD NOT
CONTAIN ARGUMENT OR PROCEDURAL MOTIONS.
1.
Brief statement (less than one page), without argument, of any material facts not
set forth in the docketing statement. This is not intended to be a substitute for the
factual statement that will appear in the brief.
2.
Concise statement of clarification of any issues set forth in the docketing
statement.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
Date:__________________________
ATTACH PROOF OF SERVICE
(List all parties served, including name, address, and
who they represent.)
2013
12-36 Forms
2013
Forms
12-37
§ 12.14 Motion to Docket Appeal Out of Time
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert District Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
MOTION TO DOCKET APPEAL OUT OF TIME
Appellant asks to docket this appeal out of time because she has now secured all
supporting documents that are needed to accompany the docketing statement.
1. Background. Jane Pleader is the appellant in this case. This is an appeal from the trial and
jury verdict in the District Court of [Insert Name] County, Kansas. Notice of Appeal of
this matter was filed in that court on [Insert Date.] More than 21 days have expired since
the filing of the Notice of Appeal.
2. Authority. Supreme Court Rule 2.04.
3. Reasons. Appellant’s counsel has received a telephone call from a clerk in the office of
the clerk of the appellate courts advising her that she failed to include file-stamped,
certified copies of the journal entries of judgment and the notice of appeal, as required
by the appellate rules. Counsel has now obtained certified copies of the journal entries
of judgment and the notice of appeal. These are included with this submission for filing
with the remainder of the materials required for docketing this appeal. These combined
documents complete the requirements for docketing the appeal.
For these reasons, appellant asks permission to docket the appeal today.
2013
12-38 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Docket Appeal Out of Time was sent,
by United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: This motion should accompany the docketing statement
and certified file-stamped copies of all documents required under Rule 2.04.
The motion should cite specific reasons for late docketing. Failure to docket on
time because of “excusable neglect” is an insufficient reason. If counsel believes
excusable neglect exists, the basis for that belief should be stated in the motion.
2013
Forms
12-39
§ 12.15 Admission Pro Hac Vice of Out-of-State Attorney:
Kansas Attorney’s Motion
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
MOTION FOR ADMISSION PRO HAC VICE
A Kansas attorney of record seeks the admission of an out-of-state attorney to practice
law in this appeal.
1. Background. Jane Pleader, an attorney in this case, admitted to practice law in Kansas, and
in good standing, asks this court to admit [Insert name of out-of-state attorney] to practice
2.
3.
4.
5.
law in Kansas for this particular appeal.
Authority. Supreme Court Rule 1.10.
Reasons. [Insert name of out-of-state attorney], already admitted to practice law in
Washington, D.C., Virginia, Maryland, and the D.C. United States Circuit Court of Appeals
is needed to assist in this case. She is in good standing under the rules of the highest
appellate courts in all of the jurisdictions in which she regularly appears.
Jane Pleader will remain actively engaged in this case, will sign all pleadings, documents,
motions and briefs, and will be present during oral argument if scheduled.
The verified application of [Insert name of out-of-state attorney] and the $100 nonrefundable fee are attached.
2013
12-40 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion For Admission Pro Hac Vice was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: The Kansas attorney is required to be in good standing and
“regularly engaged in the practice of law in Kansas.” Effective July 1, 2005, the
Kansas attorney is, however, not required to be a Kansas resident.
The Kansas attorney’s motion and the out-of-state attorney’s verified application
are required to be served on all counsel of record and on the out-of-state attorney’s
client. See Rule 1.10.
2013
Forms
12-41
§ 12.16 Admission Pro Hac Vice of Out-of-State Attorney:
Out-of-State Attorney’s Verified Application
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
VERIFIED APPLICATION FOR ADMISSION PRO HAC VICE
An out-of–state attorney seeks admission to practice law in Kansas in this particular
appeal.
1. Background. My name is: [Insert Name]. I am regularly engaged in the practice of law
and in good standing in [Insert name of all states, territories of the United States, or
the District of Columbia] according to the rules of the highest appellate court in that
jurisdiction.
2. Authority. Supreme Court Rule 1.10.
I am aware that, if this application is granted, I will be subject to the order of, and amenable
to disciplinary action by, the Kansas appellate courts. In support of my application I state the
following:
1. [Identify the party or parties represented]
2. Local counsel [Insert name of Kansas attorney], Supreme Court registration [Insert
number], conducts business from [Insert address and phone number].
3. My residential address is [Insert residential address], my business address is [Insert
business address], my business phone number is [Insert business phone], and my e-mail
address is [Insert address].
4. I am admitted to the following bar(s): [Insert bar(s), date(s) of admission, registration
2013
12-42 Forms
number(s)]
5. I am a member in good standing of each of the above bar(s).
6. I have not been the subject of prior public discipline, including but not limited to
suspension or disbarment, in any jurisdiction.
7. No disciplinary action or investigation is currently pending against me in any jurisdiction
[or if an action is pending, so state, and provide a detailed description of the nature and
status of the action/investigation as well as the address of the disciplinary authority in
charge].
8. Within the preceding 12 months, I have been admitted pro hac vice in Kansas in the
following case(s): [Insert case name(s), case number(s), and court(s) in which admitted].
I swear or affirm that all of this information is true and correct to the best of my knowledge.
I understand that I remain under a continuing obligation to notify the clerk of the appellate courts
if a change occurs in any of the information provided.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
~seal~
Notary:
Expiration Date of Notary:
County & State:
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Verified Application was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-43
PRACTICE NOTE: The out-of-state attorney’s verified application and the
Kansas attorney’s motion are required to be served on all counsel of record and
on the out-of-state attorney’s client. See Rule 1.10.
2013
12-44 Forms
2013
Forms
12-45
§ 12.17 Entry of Appearance
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
ENTRY OF APPEARANCE
Jane Pleader is now representing [name of client as well as party designation] as counsel of
record in this appeal.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-46 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Entry of Appearance was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: The most important part of an entry of appearance is the
clear statement by name and party designation of the client on whose behalf the
attorney enters an appearance. If a party is represented by only one attorney, it is
sufficient to enter an appearance as “counsel of record.” If a party is represented
by more than one attorney, the entry of appearance must also indicate whether the
attorney is entering the case as lead counsel or as co-counsel.
2013
Forms
12-47
§ 12.18 Motion to Withdraw as Appointed Counsel
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
________________________________________)
MOTION TO WITHDRAW AS APPOINTED COUNSEL
Appointed appellate counsel asks to withdraw because of a conflict of interest.
1.
Background. This is an appeal from the district court’s denial of relief sought in a K.S.A.
60-1507 motion. Notice of Appeal was filed on [Insert Date]; the case was docketed on
[Insert Date].
2.
Authority. Kansas Rule of Professional Conduct 1.7(a) and Supreme Court Rule 1.09.
3.
Reasons. Counsel has just learned that [Insert Name] is a co-defendant in this case.
Counsel has in the past and does currently represent [Insert Name]. If counsel continues
to represent the appellant, she will be required to argue a position, stemming from the
same set of facts and circumstances that is in conflict with the interests of [Insert Name.]
Thus, a conflict of interest has arisen.
4.
Counsel requests remand to the district court for appointment of new appellate counsel.
[In the alternative, if substitute counsel has already entered an appearance, give the name
of substitute counsel.]
For these reasons, counsel asks the court to allow her to withdraw.
2013
12-48 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Withdraw was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: A motion to withdraw should be accompanied by an entry
of appearance filed by new counsel if possible. A motion to withdraw generally
will not be granted in a criminal case unless another attorney has entered an
appearance.
The motion to withdraw must be served on the client, even when the client has
requested the attorney to withdraw from the case. The motion must also be served
on opposing counsel.
Rule 1.09 sets out separate procedures for withdrawal, depending on the client’s
circumstances:
•
Withdrawal of Attorney When Client Will Be Left Without Counsel
•
Withdrawal of Attorney When Client Continues to Be Represented by
Other Counsel of Record
•
Withdrawal of Attorney When Client Will Be Represented by Substituted
Counsel
•
Withdrawal of Attorney When Client is Represented by Appointed
Counsel
The motion should be drafted to address the specific requirements for that type
of withdrawal.
2013
Forms
12-49
§ 12.19 Request for Transcript
IN THE [Insert Number] JUDICIAL DISTRICT
DISTRICT COURT OF [Insert Name] COUNTY, KANSAS
(CRIMINAL)(CIVIL) DEPARTMENT
[Insert Name],
)
)
Plaintiffs-Appellees,
)
)
vs.
) [Insert District Court Case Number ) and Division Number, if applicable]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
REQUEST FOR TRANSCRIPT
[Insert Name] asks for the following transcripts to be prepared for the appeal of this
case: [Insert a list of the specific transcripts or portions of transcripts needed, including
the date of the hearing.]
1.
Transcript of Jury Trial [Insert Date] through [Insert Date] except this request does not
include the jury voir dire.
2.
Transcript of hearing on defendant’s motion to suppress. [Insert Date].
3.
Authority. Supreme Court Rule 3.03.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-50 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Request for Transcript was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.
The court reporter who took the transcript MUST be served.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: If you are unsure which court reporter should be served,
contact the district court clerk. Rule 354 requires the trial judge to enter on the
appearance/trial docket the name of the court reporter taking proceedings. If
the proceedings were electronically recorded, service is made on the clerk of the
district court. Rule 365.
It is critical that the request state the transcript is for appeal because the court
reporter’s time begins to run upon service of the request. See Rule 3.03(e).
2013
Forms
12-51
§ 12.20 Request for Additions to the Record on Appeal
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
REQUEST FOR ADDITIONS TO THE RECORD ON APPEAL
Appellant asks that several documents be added to the record on appeal.
1.
Background. The record on appeal in this case is now in the possession of the clerk of the
appellate courts.
2.
Authority. Supreme Court Rule 3.02(d)(3).
3.
The following exhibits, depositions, and transcripts must be added to the record on
appeal: [Enumerate and describe each exhibit, deposition, instruction, or transcript.]
[Briefly explain the reason for the addition.]
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-52 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Request was sent by United States Mail, postage
prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made, including
the court reporter if he or she has custody of the requested exhibits.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: This form should be used when the record has been
transmitted to the clerk of the appellate courts.
If the record is still in the district court, a request simply listing the additions can
be served on the clerk of the district court if the additions are part of the entire
record in this case. No court order is required. See Rule 3.02. A court order will be
required if the additions are not part of the entire record in this case. For example,
they are part of the record in another case.
2013
Forms
12-53
§ 12.21 Motion to Consolidate Appeals
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
Plaintiff-Appellee,
vs.
[Insert Name],
Defendant-Appellant.
)
)
)
)
) [Insert Appellate Court Case Number]
)
)
)
)
)
MOTION TO CONSOLIDATE APPEALS
[Name of Party] seeks to consolidate this case with Appellate Case No. ____.
1.
Background. The issues on appeal in this case are: [Give a brief synopsis of all issues.]
2.
Authority. Supreme Court Rule 2.06.
3.
Reasons. The parties, the facts, the issues, and the law pertaining to both cases are
identical.
4.
Both cases pertain to [briefly describe the facts underlying the appeals].
5.
A ruling from this Court in either case would dispose of the other. [Briefly explain.]
Because of this, [name of party] asks the court to consolidate the two cases for appeal.
2013
12-54 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Consolidate Appeals was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: Motions to consolidate appeals should be filed early in the
appellate process before briefing occurs.
A separate motion to consolidate must be filed in each of the cases suggested for
consolidation. A motion to consolidate may request consolidation of two or more
appeals.
2013
Forms
12-55
§ 12.22 Motion to Transfer to Supreme Court
IN THE SUPREME COURT OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendants-Appellees.
)
_________________________________________)
MOTION TO TRANSFER TO SUPREME COURT
Appellant asks that this appeal be transferred to the Supreme Court because the subject
matter of the case has significant public interest.
1.
Background. This motion to transfer has been filed with the clerk of the appellate courts
within 30 days after the service of the appellant’s notice of appeal.
2.
Authority. Supreme Court Rule 8.02 and K.S.A. 20-3017.
3.
Nature of the case: This is an appeal [insert the full nature of the case.]
4.
This case is within the authority of the Supreme Court according to [demonstrate how
the case is within the jurisdiction of the Supreme Court.]
5.
Reasons for transfer. [Specify grounds found in Supreme Court Rule 8.02(b)(3)(A) through
(D).]
For these reasons, appellant asks the Supreme Court to transfer this case for determination.
2013
12-56 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Transfer was sent by United States Mail,
postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: Even though the statutory thirty days from service of the
notice of appeal may have passed [See K.S.A. 20-3017 and Rule 8.02], a party who
files a motion to transfer will have called the case to the attention of the Supreme
Court which may exercise its discretion and transfer the case on its own motion.
K.S.A. 20-3018(c). The motion is filed in the Supreme Court, not the Court of
Appeals.
2013
Forms
12-57
§ 12.23 Motion for Extension of Time to File Brief
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
MOTION FOR EXTENSION OF TIME TO FILE BRIEF
[Insert name] asks for an additional 30 days to file the [state type of brief- e.g. appellant,
appellee] brief.
1.
Background. The appellant’s brief is now due on July 4, 2013. Two prior extensions of
time have been requested and granted.
2.
Authority. Supreme Court Rule 5.02.
3.
Reasons. [State with particularity the reason for the extension. For example, the appellant’s
counsel has just received the last volume of the 2,000 page trial transcript and needs more
time to read, analyze and make cross-references from this large record in the brief.]
Because of this, the appellant asks the court for an extension of time of 30 days to file the
brief.
2013
12-58 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Extension of Time was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: A motion for extension of time will be held seven business
days plus three calendar days by the clerk of the appellate courts for response from
opposing counsel. Rule 5.01(c). A motion which requests twenty days or less will
be acted upon immediately. See Rule 5.01(d). An adverse party’s consent will be
considered but is not controlling. See Rule 5.02(b).
Motions for extension of time to file brief are perhaps the most common motion
received by the clerk of the appellate courts. Even though they are common,
there are still pitfalls to avoid when requesting a little bit more time to finish up a
brief. First, every effort should be made to proofread the document for internal
consistency. If the motion requests 30 days at the beginning, it should also request
30 days at the end. Second, it is a good idea to check Supreme Court Rule 5.02
to see if additional information is required; for example, the attorney must give
“reasons constituting excusable neglect” if the motion is filed after the expiration
of the existing brief due date. And finally, practitioners should know that motions
for time are generally given in 30-day increments. There will never be an extension
longer than 30 days. An attorney is free to request fewer than 30 days. However,
he or she should be aware that the request will still count as an extension given by
the court, even if all 30 days were not used.
2013
Forms
12-59
§ 12.24 Motion to Immediately File Brief Out of Time
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
MOTION TO IMMEDIATELY FILE BRIEF OUT OF TIME
1.
Background. The appellee’s brief was due on July 4, 2013, and that day has passed. The
appellee has asked for and received one prior extension of time to file the brief.
2.
Authority. Supreme Court Rule 5.02.
3.
Reasons. [State with particularity the reasons constituting excusable neglect. For example,
the printer did not complete the appellee’s brief as requested and appellee has just received
all of the copies needed for filing.]
Because of this, appellee asks for permission to file the brief immediately.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-60 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Immediately File Brief Out of Time
was sent by United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: This motion accompanies the completed brief. If the brief
is not being submitted with the motion, the motion should be titled “Motion to
File Brief Out of Time.” The brief can then be submitted if the court grants the
motion.
2013
Forms
12-61
§ 12.25 Motion to Exceed Page Limitations
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendants-Appellees.
)
________________________________________)
MOTION TO EXCEED PAGE LIMITATIONS
The Appellant asks permission to file a brief that is 60 pages in length.
1.
Background. The appellant’s brief is due July 4, 2013.
2.
Authority. Supreme Court Rule 6.07(e).
3.
Reasons:
a. The record on appeal in this case consists of 30 volumes and several thousand pages
of exhibits;
b. The trial lasted nearly a month and there were several other hearings on motions and
other matters which are the subjects of this appeal;
c. This case involves numerous complex and significant legal issues, including the
constitutionality of K.S.A. 60-3701 et seq. and the interpretation of the wrongful death
statute, K.S.A. 60-1901;
d. Because of the complex facts and issues, it has been impossible for counsel to
condense the brief to the 50-page limit and still address properly all the issues before this
Court;
e. Counsel was able to condense the brief to 60 pages, not counting the table of
contents and appendices.
Therefore, the Appellant asks the Court for permission to file a 60-page brief.
2013
12-62 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion was sent by United States Mail, postage
prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: A motion to exceed page limitations must be submitted
prior to submission of the brief and must include a specific total page request. See
Rule 6.07(e).
2013
Forms
12-63
§ 12.26 Motion to Correct Brief
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
MOTION TO CORRECT BRIEF
Appellee asks to correct typographical and citation errors in her brief.
1.
Background. Appellee timely filed a brief on [Insert Date]. This case has not yet been set
for oral argument.
2.
Reasons. After the brief was filed, the Appellee discovered two incorrect case citations
and the misspelling of two witness names in the brief. There is no need to withdraw the
briefs as they can be easily corrected by a representative of the Appellee coming to the
office of the clerk of the appellate courts and making the corrections by hand.
Therefore, the appellee seeks permission to correct the brief.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-64 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Correct Brief was sent by United States
Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-65
§ 12.27 Motion to Substitute Corrected Brief
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
MOTION TO SUBSTITUTE CORRECTED BRIEF
Appellant asks permission to withdraw briefs containing errors and replace them with
briefs that have no errors.
1.
Background. The appellant timely filed a brief on [Insert Date]. This case has not yet been
set for argument.
2.
Reasons. After the brief was filed, appellant’s counsel discovered typographical errors in
two case citations on pages 2 and 14 of the brief. In addition, counsel discovered that the
printer improperly collated the pages in the brief, specifically pages 7 through 27 in every
copy of the brief are in random, nonsequential order. Neither the printer nor appellant’s
counsel discovered this mistake until the original copies had been filed with the clerk of
the appellate courts.
3.
These errors cannot be corrected in the office of the clerk of the appellate courts. Instead,
an entirely new set of briefs, with corrections and proper collation, have been prepared
for substitution for the briefs now filed with the Court.
Therefore, appellant asks that she be permitted to substitute corrected briefs.
2013
12-66 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Substitute Corrected Brief was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: This motion addresses technical corrections only, and the
established briefing schedule is not affected by the motion.
2013
Forms
12-67
§ 12.28 Motion to Substitute Parties
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
MOTION TO SUBSTITUTE PARTIES
A special administrator of a probate estate brought this appeal on behalf of the estate.
She has now died and her daughter, who has been appointed by the district court as the
special administrator of the estate, asks to be substituted as the named appellant.
1.
Background. Jane Pleader, was appointed by the District Court of [insert name] County as
Special Administrator of the Estate of John Pleader, her husband. As special administrator
she was to investigate and possibly pursue a claim against Dr. Richard Roe and others for
medical malpractice.
2.
Authority. K.S.A. 60-225(a).
3.
Reasons. Jane Pleader filed a medical malpractice lawsuit against defendant Roe on [insert
date], in the [insert name] County District Court.
4.
Ultimately, by summary judgment and directed verdict, the district court dismissed the
various claims of negligence the estate made against Dr. Richard Roe.
5.
Jane Pleader brought this appeal on behalf of the probate estate.
6.
Jane Pleader died on [insert date]. At that time, this appeal was still pending.
7.
After the death of Jane Pleader, the [insert name] District Court appointed Betty Pleader
as Special Administrator of the Estate of John Pleader to continue this lawsuit and other
purposes.
2013
12-68 Forms
Betty Pleader, Special Administrator of the Estate of John Pleader now asks this court to
substitute her as the appellant in this appeal in the place of Jane Pleader, so she can continue with
this appeal.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion to Substitute Parties was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-69
§ 12.29 Notice of Voluntary Dismissal
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
NOTICE OF VOLUNTARY DISMISSAL
The parties have settled and ask the court to dismiss this appeal.
1.
Background. During the pendency of this appeal, the parties entered into negotiations
regarding the possible settlement of all claims in this case.
2.
Authority. Supreme Court Rule 5.04.
3.
Reasons. The parties arrived at a settlement of all claims in this case and have agreed to
dismiss this appeal as a condition of their settlement agreement. Each party has agreed
to bear their own costs and expenses, including costs of this appeal.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-70 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Notice of Voluntary Dismissal was sent by United
States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: If there is more than one appellant, the notice should
clearly state if one or all of the appellants are dismissing the appeal. The notice
should also indicate whether it is intended to dismiss any cross-appeals. If so, the
notice must be signed by both parties. The notice should also indicate whether
dismissal is with or without prejudice and should allocate costs.
2013
Forms
12-71
§ 12.30 Motion for Involuntary Dismissal
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellant,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendants-Appellees.
)
_________________________________________)
MOTION FOR INVOLUNTARY DISMISSAL
[Insert name] asks the Court to dismiss this appeal without prejudice so the parties
can obtain a district court order certifying this case is a controlling question of law.
1.
Background. James Doe commenced an action against John Doe and ABC, Inc., claiming
that John Doe committed tortious acts and demanding compensation for his injury and
damages.
2.
Authority. Supreme Court Rule 4.01 and K.S.A. 60-2102(c).
3.
Reasons. Defendant, John Doe, notified his insurance carrier and demanded the insurance
carrier, under the terms of its policy, provide a defense and pay any lawful claims.
4.
Plaintiff agreed to provide a defense and then commenced a declaratory judgment action
requesting the trial court to interpret a policy of insurance issued to the defendant, John
Doe.
5.
Plaintiff in this action attempted to discover facts in controversy in the underlying
tort suit between James Roe and John Doe and further requested the trial court in this
declaratory judgment action to construe the underlying facts and interpret the subject
insurance policy.
2013
12-72 Forms
6.
The trial court entered an order staying this action until the facts in the underlying tort
action were determined or until the underlying tort action was concluded based upon the
legal principle enunciated in State Farm Fire & Casualty Company v. Finney, 244 Kan. 545,
770 P.2d 460 (1989); State Farm Fire & Casualty Company v. T.G.B., Inc., 760 F. Supp. 178
(D. Kan. 1991); and U.S. Fidelity and Guaranty Co. v. Continental Insurance Company, 216 Kan.
5, 531 Pac. 9 (1975).
7.
The plaintiff appeals from the Stay Order which is not a final Order, and the plaintiff
did not secure an Order from the district judge under K.S.A. 60-2102(c) to enable the
Court of Appeals to exercise its discretion whether or not to permit the appeal herein.
Accordingly, plaintiff ’s appeal is premature.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Involuntary Dismissal was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-73
§ 12.31 Application to File Amicus Brief
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendants-Appellees.
)
_________________________________________)
APPLICATION TO FILE AMICUS BRIEF
A trade association seeks to file a friend of the court brief because this appeal deals
with a subject that could profoundly affect the business of the entire association.
1.
Background. This appeal involves the interpretation and application of K.S.A. 16-205
concerning interest rates on promissory notes. It also presents the question of whether
the parties to a commercial transaction may agree to an increased interest rate upon
occurrence of a non-monetary event of default.
2.
Authority. Supreme Court Rule 6.06.
3.
Reasons. The Kansas Bankers Association is a Kansas not-for-profit corporation and the
primary trade association for the Kansas Commercial Banking Industry; 360 of the 362
state and national commercial banks in the State are members of the association.
4.
Both of the issues in this appeal are subjects of profound interest to Kansas banks. The
decision in this appeal will affect not only the parties to this action, but most commercial
loans of all Kansas banks.
For these reasons, the Kansas Bankers Association makes this application to file a friend of
the court brief.
2013
12-74 Forms
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Application to File Amicus Brief was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: An amicus brief must be filed not less than thirty days prior
to oral argument. The application should be filed as early in the appeal as possible.
See Rule 6.06.
2013
Forms
12-75
§ 12.32 Suggestion for Place of Hearing
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiffs-Appellants,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellee.
)
_________________________________________)
SUGGESTION FOR PLACE OF HEARING
Jane Pleader, appellant, suggests that the oral arguments in this case be held in Hays,
Kansas.
1.
Authority. Supreme Court Rule 7.02(d)(3).
2.
Reasons. All parties to this civil appeal live in Ellis County, Kansas. If the oral arguments
in this case were held in Hays, all parties would be able to attend the hearing.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-76 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Suggestion for Place of Hearing was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
2013
Forms
12-77
§ 12.33 Motion for Modification or Rehearing
IN THE [COURT OF APPEALS] [SUPREME COURT] OF
THE STATE OF KANSAS
[Insert Name],
)
)
Plaintiff-Appellee,
)
)
vs.
) [Insert Appellate Court Case Number]
)
[Insert Name],
)
)
Defendant-Appellant.
)
_________________________________________)
MOTION FOR MODIFICATION OR REHEARING
The appellee seeks a modification of this court’s holding or a rehearing because of an
incorrect interpretation of the applicable statute.
1.
Background. The court filed its opinion on [Insert Date.] This motion has been filed
within [14 days for Court of Appeals, 21 days for Supreme Court] of the court filing its
decision.
2.
Authority. Supreme Court Rule 7.05 for Court of Appeals, 7.06 for Supreme Court.
3.
Reasons. The court has ignored precedent and misinterpreted the statute that controls the
issue of this case. [Insert specific argument in support of modification.]
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-78 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Modification or Rehearing was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: A copy of the Court’s opinion must be attached to the
motion. Note that the time to file is calculated from the date of decision, not a
service date.
2013
Forms
12-79
§ 12.34 Motion for Attorney Fees and Costs
IN THE (SUPREME COURT)(COURT OF APPEALS) OF THE STATE OF KANSAS
[Insert Name],
)
Plaintiff-Appellee,
)
)
vs.
)
)
[Insert Name],
)
Defendant-Appellant.
)
________________________________________ )
[Insert Appellate Court Case Number]
MOTION FOR ATTORNEY FEES AND COSTS
Appellee asks for attorney fees and costs because this appeal is frivolous.
1.
Background. This appeal was argued to the court on [Insert Date]. This motion was filed
within 14 days of the date of oral argument.
2.
Authority. Supreme Court Rules 5.01, 7.07(b) and 7.07(c).
3.
Reasons. [Insert Argument]
4.
Amount requested. Appellee has incurred attorney fees in the amount of $12,005.25
and costs in the amount of $599.29 as evidenced by Exhibits A and B. The affidavit of
counsel is Exhibit A. The itemization of fees and costs incurred in conjunction with the
appeal is attached as Exhibit B.
For these reasons, Appellee asks this court to award attorney fees and direct the mandate from
this court to reflect this assessment so that execution can issue according to law.
.
Attorney’s Signature
______________________________
Attorney’s Name (typed or printed)
Kansas Attorney Registration Number
Address
Telephone Number
Fax Number
E-mail Address
Name of the Party Represented
2013
12-80 Forms
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Attorney Fees and Costs was sent by
United States Mail, postage prepaid, on [Insert Date], to:
[Insert names and addresses of those on whom service is made.]
__________________________________
Attorney’s Name and Registration Number
PRACTICE NOTE: If oral argument is waived, this motion must be filed not later
than 14 days after the day argument is waived or the date of the letter assigning the
case to a non-argument calendar, whichever is later. An affidavit must be attached
to the motion specifying: (A) the nature and extent of the services rendered; (B)
the time expended on the appeal; and (C) the factors considered in determining
the reasonableness of the fee. Kansas Rule of Professional Conduct 1.5 regarding
fees should be followed. According to Supreme Court Rule 7.07(b)(1), an appellate
court can also award attorney fees for the appeal in a case in which the district
court had authority to award attorney fees. Costs for preparation of unnecessary
transcripts may be recovered under Rule 7.07(d).
2013
Forms
12-81
§ 12.35 Briefing Checklist
This checklist is designed to help a brief writer comply with the Kansas Supreme Court Rules.
It begins at the cover page and moves through the major sections of a brief. Refer to the sample
brief at § 12.36, infra. If you have questions, call the appellate clerk’s office at 785.296.3229 or
email [email protected].
□ Is the cover page of the brief the correct color? Rule 6.07(b)(1).
□ Does the following information appear on the cover of the brief ? Rule 6.07(b)(2).
The appellate court docket number.
The words IN THE COURT OF APPEALS OF THE STATE OF KANSAS or
IN THE SUPREME COURT OF THE STATE OF KANSAS.
The caption of the case as it appeared in the district court, except that a party must be
identified not only as a plaintiff or defendant but also as an appellant or appellee.
The title of the document, e.g., “Brief of Appellant” or “Brief of Appellee,” etc.
The words “Appeal from the District Court of ______ County, Honorable
___________, Judge, District Court Case No. __________”.
The name, address, telephone number, fax number, e-mail address, and attorney
registration number of one attorney for each party on whose behalf the brief
is submitted. An attorney may be shown as being of a named firm. Additional
attorneys joining in the brief must not be shown on the cover but may be added at
the conclusion of the brief.
The words “oral argument” printed on the lower right portion of the brief cover,
followed by the desired amount of time, if additional time for oral argument is
requested.
2013
12-82 Forms
□ Does the body of the brief appear in black type or print on 8½” by 11” white bond paper?
Rule 6.07(a)(1).
□ Is the text printed in a conventional style font not smaller than 12 point with no more than
12 characters per inch? Rule 6.07(a)(2).
□ Is the text double-spaced, except block quotations and footnotes? Rule 6.07(a)(2).
□ Is the left margin not less than 1½ inches and the top, bottom and right margins not less
than 1 inch? Rule 6.07(a)(3).
□ Is only one side of the paper used? Rule 6.07(a)(5).
□ If the brief exceeds 15 pages in length, are at least 10 of the required 16 copies assembled
with full length spiral binders on the left side? Rule 6.07(c).
□ Is the length of the brief, excluding the cover, table of contents, appendix, and certificate
of service, within the page limitation allowed? Rule 6.07(d).
□ Does the brief contain a table of contents that includes page references to each division
and subdivision in the brief, including each issue presented, and the authorities relied on in
support of each issue? Rule 6.02(a)(1).
□ Does the brief contain a brief statement of the nature of the case, e.g., whether it is a
personal injury suit, injunction, quiet title, etc., and a brief statement of the nature of the
judgment or order from which the appeal was taken? Rule 6.02(a)(2).
□ Does the brief contain a brief statement, without elaboration, of the issues to be decided
in the appeal? Rule 6.02(a)(3).
□ Does the brief contain a concise but complete statement, without argument, of the facts
that are material to determining the issues to be decided in the appeal? Rule 6.02(a)(4).
□ Are the facts keyed to the record on appeal by volume and page number?
6.02(a)(4).
2013
Rule
Forms
12-83
□ Have the parties been referred to in the body of the brief by their status in the district
court, e.g., plaintiff, defendant, etc., or by name? Rule 6.08.
□ If the appeal involves a child under the code for care of children, a juvenile offender, a
party to an adoption proceeding, the victim of a sex crime, or a juror or venire member,
have their identities been protected by using initials only or given name and last initial?
Rule 7.043.
□ Does each issue begin with citation to the appropriate standard of appellate review and
a pinpoint reference to the location in the record on appeal (volume and page number)
where the issue was raised and ruled on? Rule 6.02(a)(5).
□ Does the appendix, if one is included, consist only of limited extracts from the record on
appeal? Rule 6.02(b).
□ Is there a certificate of service included as the last page of the brief ? Rule 6.09(a)(2).
□ Have the brief and certificate of service been signed?
□ Have 2 copies of every brief been served on all adverse parties united in interest? Rule
6.09(a)(1).
□ Have 16 total copies of the brief been filed with the clerk of the appellate courts? Rule
6.09(a)(3).
2013
12-84 Forms
2013
Forms
12-85
§ 12.36 Sample Brief
No. 11-000000-A
_______
IN THE
[COURT OF APPEALS]
[SUPREME COURT] OF THE
STATE OF KANSAS
_______
STATE OF KANSAS
Plaintiff-Appellee
vs.
JOHN DOE
Defendant-Appellant
_______
BRIEF OF APPELLANT
_______
Appeal from the District Court of xxx County, Kansas
Honorable xxx, Judge
District Court Case No. xx CR xxx
_______
Attorney Name, Bar Number
Name of Firm or Agency
Address
City, State ZIP
Telephone Number
Email Address
Attorney for the Appellant
Oral Argument: 15 minutes
2013
12-86 Forms
ii
Table of Contents
Nature of the Case........................................................................................................................1
Statement of Issues......................................................................................................................1
Statement of Facts........................................................................................................................1
Arguments and Authorities........................................................................................................3
Issue I:
The State failed to present sufficient evidence to convict
Mr. Doe of aggravated robbery because the taking was complete before the
force or threat of bodily harm occurred............................................................................3
State v. Martinez, 290 Kan. 992, 1003, 236 P.3d 481 (2010).............................................3
State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009)..........................................................3
State v. Henning, 289 Kan. 136, 139, 209 P.3d 711 (2009).................................................3
State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221 (2008)...................................................3
K.S.A. 21-3427.......................................................................................................................3
P.I.K. Crim. 3d 56.31............................................................................................................3
State v. Finch, 223 Kan. 398, 402-03, 573 P.2d 1048 (1978)........................................ 3, 9
State v. Knight, 44 Kan. App. 2d 666, 681, 241 P.3d 120 (2010)......................................4
State v. Aldershof, 220 Kan. 798, Syl. ¶ 1, 556 P.2d 371 (1976).................................... 4, 8
K.S.A. 21-3412.......................................................................................................................5
State v. Long, 234 Kan. 580, 675 P.2d 832 (1984)......................................................... 5, 8
State v. Keeler, 238 Kan. 356, 710 P.2d 1279 (1985)...........................................................5
State v. Long, 8 Kan. App. 2d 733, 667 P.2d 890 (1983)...................................................5
State v. Miller, 53 Kan. 324, 36 P. 751 (1894)......................................................................5
State v. Dean, 250 Kan. 257, 824 P.2d 978 (1992)..............................................................6
State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998)............................................... 7, 8, 9
State v. Saylor, 228 Kan. 498, 500-01, 618 P.2d 1166 (1980)....................................... 7, 8
People v. Randolph, 466 Mich. 532, 548, n. 18, 648 N.W. 2d 164 (2002)..........................8
Issue II: Mr. Doe’s two convictions for aggravated robbery are
multiplicitous, and violate the Fifth and Fourteenth Amendments
to the United States Constitution and § 10 of the Kansas Constitution
Bill of Rights.......................................................................................................................... 10
State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010)..............................................10
State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006)................................10, 11, 12
State v. Gomez, 36 Kan. App. 2d 664, 669, 143 P.3d 92 (2006)............................... 10, 12
State v. Pham, 281 Kan. 1227, 1246, 136 P.3d 919 (2006)..................................11, 12, 13
Hall v. Dillon Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008).........................13
Issue III: Because the district court failed to ask the jurors if the
verdicts the district court recited were, in fact, the jurors’ verdicts,
this Court must vacate Mr. Doe’s convictions...............................................................14
State v. Johnson, 40 Kan. App. 2d 1059, 1073, 198 P.3d 769 (2008)........................ 14, 15
State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008).............................................14
U.S. v. Morris, 612 F.2d 483, 489 (10th Cir. 1979)...........................................................14
State v. Henning, 289 Kan. 136, 139, 209 P.3d 711 (2009)...............................................15
State v. Dayhuff, 37 Kan. App. 2d 779, 784, 158 P.3d 330 (2007)..................................15
K.S.A. 22-3421.............................................................................................................. 15, 16
State v. Gray, 45 Kan. App. 2d 522, 249 P.3d 465 (2011)...............................................15
Conclusion................................................................................................................................16
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Nature of the Case
A jury found John Doe guilty of two counts of aggravated robbery, a severity level
three person felony; one count of aggravated battery, a severity level four person felony;
and one count of aggravated assault, a severity level seven person felony. The district court
imposed a controlling 112-month prison sentence, and Mr. Doe appealed.
Statement of Issues
Issue I:
The State failed to present sufficient evidence to convict Mr. Doe of
aggravated robbery because the taking was complete before the force or
threat of bodily harm occurred.
Issue II: Mr. Doe’s two convictions for aggravated robbery are multiplicitous,
and violate the Fifth and Fourteenth Amendments to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights.
Issue III: Because the district court failed to ask the jurors if the verdicts the
district court recited were, in fact, the jurors’ verdicts, this Court must
vacate Mr. Doe’s convictions for aggravated battery and aggravated
assault.
Statement of Facts
Based on the events of June 14, 2009, the State charged John Doe with two counts
of aggravated robbery and one count each of aggravated battery, aggravated assault, and
possession of drug paraphernalia. (R. I, 15-16).
At trial, Mack Jones, the Store Manager at a xxx store in xxx, Kansas, testified that
Mr. Doe had entered his store at approximately 10:30 P.M. on June 14, 2009. (R. XIII, 34142). Due to Mr. Doe’s suspicious behavior, Jones began to watch Mr. Doe. (R. XIII, 343).
Eventually, Jones saw Mr. Doe “place a magazine down the front of his pants,” and then
“walk through the front of the store past the checkstands and out the door.” (R. XIII, 344).
After Mr. Doe placed the magazine in his pants, but before he left the store, Jones called
customer service and “told them to have” Mary Drew, another store employee, “meet [him]
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at the front of the store” so they could “stop [Mr. Doe] from leaving the store and ask him
to come back inside.” (R. XIII, 344-45). Jones and Drew then confronted Mr. Doe outside
the store, and asked him “to come back into the store to talk about merchandise that was not
paid for.” (R. XIII, 345-46). Mr. Doe “turned around,” and acted as if he were returning to
the store, but then stabbed Jones in the stomach with a knife, pointed the knife at Drew, and
fled the parking lot. (R. XIII, 329-30, 333-34, 348-49).
At no point during his testimony did Jones mention what had ultimately happened
to the magazine, which had a cover price of $5.99. (R. XII, 152, 192, R. XIII, 325; State’s
Exhibit 5). According to Drew’s testimony, however, Mr. Doe had handed the magazine to
Jones before the struggle, and the magazine had then “flown” out of Jones’ hands and back
into the store, where police found it when they arrived. (R. XX, 149).
After the State rested its case, defense counsel moved for a directed verdict, arguing
that, because the use of force or threat of bodily harm to Jones and Drew had not occurred
until after Mr. Doe had already taken, and, in fact, returned the magazine, the State had
presented insufficient evidence to allow a rational factfinder to convict him of either of
the counts of aggravated robbery. (R. XIII, 366). The district court ruled that it was “up
to the jury to determine the fact[s],” and overruled defense counsel’s motion. (R. XIII,
374). Defense counsel also argued that the evidence could only support one conviction
for aggravated robbery, because there was “only one owner involved, that being the store,
not the employees.” (R. XIII, 375). The State acknowledged that the counts might be
“multiplicitous for sentencing purposes,” but argued that the evidence supported two
convictions based on the two victims. (R. XIII, 376). The district court “adopt[ed] the
argument of the State,” but noted that, “[f]or sentencing purposes, it may be multiplicitous.”
(R. XIII, 377).
The jury ultimately found Mr. Doe guilty of two counts of aggravated robbery and
one count each of aggravated battery and aggravated assault. Neither party requested the
district court to poll the jury; nor did the district court ask the jury if the verdicts the district
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court had read were, in fact, the jury’s verdicts. (R. XIII, 460). Based on Mr. Doe’s criminal
history score of “I,” the district court imposed a controlling 112-month prison sentence. (R.
XIV, 28). Mr. Doe appealed. (R. I, 68).
Arguments and Authorities
Issue I:
The State failed to present sufficient evidence to convict Mr. Doe of
aggravated robbery because the taking was complete before the force or
threat of bodily harm occurred.
Standards of Review and Preservation of the Issue
“[W]hen sufficiency of the evidence is challenged following conviction in a criminal
case,” this Court asks “whether, after reviewing all the evidence, viewed in a light most
favorable to the prosecution,” this Court is “convinced a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.” State v. Martinez, 290 Kan. 992, 1003,
236 P.3d 481 (2010) (citing State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 [2009]). To the extent
this issue involves a question of statutory interpretation, however, this Court has unlimited
review. State v. Henning, 289 Kan. 136, 139, 209 P.3d 711 (2009).
Defense counsel raised this argument below. (R. XIII, 366). Moreover, “[t]here is no
requirement that a criminal defendant challenge the sufficiency of the evidence before the
trial court in order to preserve it for appeal.” State v. Farmer, 285 Kan. 541, 545, 175 P.3d 221
(2008).
Analysis
In order to prove that Mr. Doe was guilty of the aggravated robbery of Jones and
Drew, the State had to prove, among other things, that any taking “was by force or by threat
of bodily harm.” (R. 7, 8, 16; R. XIII, 425). K.S.A. 21-3427; P.I.K. Crim. 3d 56.31. In
other words, the State not only had to prove that a taking occurred and that, at some point,
Mr. Doe used force or threat of bodily harm; it also had to prove that Mr. Doe took the
property by force or threat of bodily harm, i.e., that the force or threat of bodily harm was
a “causative factor” of the taking. See, State v. Finch, 223 Kan. 398, 402-03, 573 P.2d 1048
(1978) (suggesting the term “by” is “synonymous with” the term “by means of.”)
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In order to prove that Mr. Doe took the magazine from Drew and Jones by force
or threat of bodily harm, therefore, the State had to prove that Mr. Doe used that force or
threat of bodily harm as a means of taking the property. Such an interpretation is consistent
with the plain language of the statute. Even if this Court disagrees, however, it must at least
acknowledge that the language of the statute is ambiguous, and interpret that ambiguity
strictly in favor of Mr. Doe. State v. Knight, 44 Kan. App. 2d 666, 681, 241 P.3d 120 (2010).
Such an interpretation of K.S.A. 21-3427 is also consistent with our Supreme Court’s
holding in State v. Aldershof, 220 Kan. 798, Syl. ¶ 1, 556 P.2d 371 (1976). In Aldershof, two
sisters were sitting in a booth in a drinking establishment. One of the women got up to use
the restroom and left her sister to watch over her purse, which was sitting on the table. While
the woman was in the restroom, the defendant came to the booth and took both women’s
purses: one from its position on the table, and the other from the remaining woman’s lap.
She immediately ran after him, followed him to the parking lot, and managed to grab him
on the back of his shirt. He then turned and struck her in the eye with his hand. A jury
convicted him of robbery. Aldershof, 220 Kan. at 799.
On appeal, the defendant argued that, because “the undisputed evidence show[ed]
that no force or threat was used in the taking of the purses,” and that “any force or violence
in the case came after the purses had already been stolen,” he was, at most, guilty of
“theft, not robbery.” Aldershof, 220 Kan. at 799-800. Our Supreme Court recognized that
“the general rule is that the violence or intimidation must precede or be concomitant or
contemporaneous with the taking.” Aldershof, 220 Kan. at 800. After adopting this general
rule, the Court stated that the appropriate test to determine whether one is guilty of robbery
or merely theft is “whether or not the taking of the property has been completed at the time
the force or threat is used by the defendant.” Aldershof, 220 Kan. at 803. Applying this test
to the facts before it, the Court held that the taking of the purses was complete when the
defendant “snatched the purses and left the premises of the tavern” because, at that point,
he had “obtained control over the purses with the intent to deprive the owner permanently
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of their possession,” thereby committing the crime of theft. The Court concluded that,
“[w]hen the thief left the tavern with the purses under his control, in our judgment the
taking had been completed and any violence thereafter used by the thief in an attempt to
prevent the owner from regaining possession of the same could not convert the theft into
a robbery, although it may well have been the basis for a charge of battery under K.S.A. 213412.” Aldershof, 220 Kan. at 803-04.
Approximately seven years later, the Court considered a slightly different factual
situation in State v. Long, 234 Kan. 580, 675 P.2d 832 (1984), rev’d on other grounds State v.
Keeler, 238 Kan. 356, 710 P.2d 1279 (1985). In Long, the victim and her husband sold milk
on an honor system; patrons took milk from a refrigerator in a sale building and paid by
placing their money in a locked, slotted money box mounted on a wall. Long, 234 Kan. at
581. On the evening of the theft, the victim entered the sale building to find “‘the defendant
crouched in front of the money box. It had been pried open. The defendant had his hands
in his pockets,’” and there was money on the floor beneath the box. Long, 234 Kan. at 581
(quoting Long, 8 Kan. App. 2d 733). The victim stood in front of the door to prevent the
defendant from leaving, but he shoved her out of the way and drove off in his car. Long, 234
Kan. at 581. A jury found the defendant guilty of robbery. Long, 234 Kan. at 580.
On appeal, the defendant argued that he had only used force “after the taking to
effect his escape,” and was not, therefore, guilty of robbery. Long, 234 Kan. at 582. The
Court cited the Aldershof test, but noted that prior Kansas cases were not “in accord with
one another,” as some of them “imply a taking is not complete until the property has been
removed from the premises of the owner,” while “others indicate the taking is accomplished
at the moment the thief, with the intent to steal, removes the property from its customary
location.” Long, 234 Kan. at 583-85 (citing Aldershof, 220 Kan. at 803-04; State v. Miller, 53
Kan. 324, 36 P. 751 [1894]).
In Miller, the defendant placed his payment on the counter. The victim put the
payment in his money drawer, removed the appropriate change from the drawer, and placed
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the change on the counter. The defendant then reached over the counter, and grabbed the
money of the victim in the drawer. The victim caught the defendant’s hand, and when the
victim refused to let go, the defendant cut the victim’s hand. He then ran out of the store.
Miller, 53 Kan. at 325. On appeal, our Supreme Court affirmed the defendant’s conviction
for robbery, noting that it could not say that the “defendant had obtained complete
possession of the money before using violence to [the victim]. It does not even appear that
he had withdrawn his hand from the drawer” at the time the violence occurred. Miller, 53
Kan. at 327.
The Long Court compared the facts before it to those in Miller, and stated that the
only difference was that, unlike the defendant in Miller, the appellant had “managed to place
most of the money in his pocket before being confronted by the victim, whereas in Miller
the defendant was stopped by the victim after he had grabbed the money from the drawer,
but before he could secrete it on his person.” The Court then “conclude[ed] that a thief
does not obtain the complete, independent and absolute possession and control of money
or property adverse to the rights of the owner where the taking is immediately resisted by
the owner before the thief can remove it from the premises or from the owner’s presence.”
Long, 234 Kan. at 586.
Eight years after deciding Long, our Supreme Court cited Miller, Long, and Aldershof
in State v. Dean, 250 Kan. 257, 824 P.2d 978 (1992). In Dean, the victim pumped three dollars
worth of gasoline into the defendant’s car, and then requested payment. Instead of paying
for the gasoline, however, the defendant stated, “‘I don’t have any money. How about this.’”
As he spoke these words, he raised his right arm underneath a jacket as if he had a weapon.
The victim, believing he was about to be shot, jumped away from the car, and the defendant
drove away from the gas station. Dean, 250 Kan. at 258. The State charged the defendant
with aggravated robbery. The defendant moved to dismiss the charge, arguing that the facts
did not support a charge of robbery. The district court agreed and dismissed the case, and
the State appealed. Dean, 250 Kan. at 258. On appeal, our Supreme Court determined that
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the facts before it were most similar to those in Long because the defendant in Dean had not
left the premises or even attempted to drive away before threatening the victim. Because the
defendant made his threat to prevent resistance to the taking and not as a means of escape,
the Court reversed the district court’s dismissal of the aggravated robbery charge.
Finally, a little over six years after deciding Dean, our Supreme Court released its
opinion in State v. Bateson, 266 Kan. 238, 970 P.2d 1000 (1998). In Bateson, a woman entered
her office to find the defendant bent over her desk and ninety-five dollars in cash missing
from her purse. When she immediately demanded its return, the defendant left the office
and walked quickly up the stairs. The victim followed directly behind him. As she attempted
to open the door, however, it came back rapidly and hit her, presumably because the
defendant had intentionally slammed it in her face. Bateson, 266 Kan at 238-39. On appeal,
the defendant challenged the sufficiency of the evidence underlying his conviction for
aggravated robbery, arguing that “[a]ny force was subsequent to taking of the property.”
Bateson, 266 Kan. at 240. Our Supreme Court agreed, stating that the defendant had obtained
possession of the property by stealth, and that the “defendant had control of the property
when he left [the victim’s] office.” Bateson, 266 Kan. at 245, 247.
Here, Jones witnessed Mr. Doe conceal a magazine in his pants. (R. XIII, 344).
Instead of immediately approaching Mr. Doe and questioning him or trying to detain
him, Jones instead called for backup, and directed Drew to meet him at the front of the
store so they could stop Mr. Doe from leaving the store and ask him to come back inside.
(R. XIII, 344-45). Jones and Drew then confronted Mr. Doe outside the store, where Mr.
Doe relinquished the magazine to Jones. (R. XIII, 328, 334, 336, 345-46). When the police
arrived, they found the magazine inside the foyer area of the store. (R. XII, 152).
Our Supreme Court has previously held that a defendant completes the taking of
property required under our theft statute when he or she “conceals” merchandise “on his
[or her] person” with the intent to permanently deprive the owner of that property. State
v. Saylor, 228 Kan. 498, 500-01, 618 P.2d 1166 (1980). In the present case, then, the taking
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was complete when Mr. Doe concealed the magazine on his person. Saylor, 228 Kan. at
500-01. Moreover, Mr. Doe walked out of the building with the magazine before anyone
attempted to stop him. Like the victim in Aldershof, who did not confront the defendant
until he had already left the bar, Jones and Drew did not confront Mr. Doe until after he
had already walked out of the store. In fact, if anything, the facts in the present case are
even less indicative of a robbery than were the facts in Aldershof. It appears that, in Aldershof,
the victim pursued the defendant immediately after he took the purses, and that she caught
up with him as soon as she could. Aldershof, 220 Kan. at 799. In the present case, however,
Jones did not immediately confront Mr. Doe, and he made no effort to keep him from leaving
the store. Instead, he called for backup, and instructed Drew to meet him at the front of
the store so they could stop Mr. Doe from leaving the store and ask him to come back inside.
(R. XIII, 344-45). (Italics added). While “it may be wise to wait to apprehend a thief who has
not used force or violence until after he has left a populated store,” one who does so “would
be apprehending a thief who committed larceny, not a robber.” People v. Randolph, 466 Mich.
532, 548, n. 18, 648 N.W. 2d 164 (2002).
And, even if Jones and Drew had immediately pursued Mr. Doe, rather than trying to
physically retrieve the magazine, physically detain Mr. Roberson, or at least physically block
his exit, such facts would not necessarily elevate Mr. Doe’s theft to robbery. In Bateson, the
victim immediately demanded her money back from the defendant and proceeded to follow
six to eight feet behind him as he exited her office and made his way out of the building.
Bateson, 266 Kan. at 246. Nevertheless, because the defendant made no threats and used
no force before exiting the office, and instead simply walked rapidly away, our Supreme
Court held that no robbery had occurred. Bateson, 266 Kan. at 245. Similarly, Mr. Doe made
no threats and used no force before walking out of the store with the magazine in his
possession. Thus, as in Bateson, no robbery occurred.
The facts in the present case also differ significantly from those in Miller, Long,
and Dean. First, unlike the defendant in Miller, who had not even managed to remove the
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money from the cash register, let alone conceal it on his person and leave the store before
the violence occurred, Mr. Doe not only hid the magazine in his pants, but walked out of
the store before Jones and Drew confronted him. Second, unlike the victim in Long, who
confronted the defendant before he could leave the sale building and attempted to block the
defendant’s exit, it appears that Jones and Drew purposefully allowed Mr. Doe to exit the store
before confronting him, and made no effort to block the door. Third, the facts in the present
case would only be similar to those in Dean if Mr. Doe had gone through the checkout line
with the magazine clearly visible, but, instead of paying for it, had menaced the cashier and
then left the store. Even under those facts, of course, Mr. Doe would have only been guilty
of the aggravated robbery of the cashier, not the aggravated robbery of any individuals who
subsequently confronted him outside the store.
Finally, one additional fact sets this case apart from other cases in which our Supreme
Court has considered whether the use of force or threat of bodily harm has either preceded
or occurred contemporaneously with a taking: in the present case, Drew’s uncontroverted
testimony establishes that Mr. Doe actually gave the magazine back to Jones before any violence
occurred. At that point, according to that uncontroverted testimony, the magazine was in
Jones’ possession, not Mr. Doe’s. (R. XIII, 328, 334, 336). And, under our Supreme Court’s
holding in Finch, a defendant does not take property by force or the threat of bodily harm if
the force or threat occurs after the defendant has abandoned the property. Finch, 223 Kan. at
402-03.
This Court must reverse Mr. Doe’s convictions for aggravated robbery and remand to
the district court with directions to resentence him.
Because the evidence the State presented at trial would support a conviction for
misdemeanor theft, but not aggravated robbery, this Court should reverse Mr. Doe’s
convictions for aggravated robbery and remand to the district court with directions to
resentence him on the lesser included offense of misdemeanor theft under K.S.A. 213701(b)(5). Bateson, 266 Kan. 238 at 246-47 (citing State v. Kingsley, 252 Kan. 761, 782, 851
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P.2d 370 [1993]). (R. XII, 192; State’s Exhibit 5). See, K.S.A. 21-3701(b)(5) (“Theft of
property of the value of less than $1,000 is a class A nonperson misdemeanor.”)
The State presented no evidence that Mr. Doe took the magazine by force or threat
of bodily harm. This Court must, therefore, vacate his convictions for aggravated robbery
and remand to the district court with directions to resentence him for misdemeanor theft.
Issue II:
Mr. Doe’s two convictions for aggravated robbery are multiplicitous,
and violate the Fifth and Fourteenth Amendments to the United States
Constitution and § 10 of the Kansas Constitution Bill of Rights.
Standard of Review and Preservation of the Issue
Defense counsel raised this issue below. (R. XIII, 375). Moreover, this Court “may
consider a multiplicity issue for the first time on appeal ‘to serve the ends of justice or
prevent a denial of fundamental rights.’” State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234
(2010). Finally, this Court has unlimited review over the question of whether two convictions
are multiplicitous. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006). Analysis
In Schoonover, the Kansas Supreme Court “provided a roadmap for determination of
multiplicity issues.” State v. Gomez, 36 Kan. App. 2d 664, 669, 143 P.3d 92 (2006). In order to
determine if convictions are multiplicitous, a Court must determine whether the convictions
are for the same offense. Convictions are for the same offense if they (1) arise from the
same conduct, and (2) constitute only one offense by statutory definition. Convictions do
not arise from the same conduct if the conduct is “discrete, i.e., committed separately and
severally.” If, however, the charges arise from the same act or transaction, then the conduct
is unitary, and the convictions do arise from the same conduct. Under such circumstances, a
reviewing Court must next determine whether the convictions are for violations of the same
statute, or two or more different statutes. If the former is true, the Court must apply the
“unit of prosecution test”; if the latter is true, then the Court applies the “same-elements”
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test. Gomez, 36 Kan. App. 2d at 669 (citing Schoonover, 281 Kan. at Syl. ¶ 15).
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In Schoonover, our Supreme Court set forth the following test for determining
whether convictions arise from the same conduct: “If the conduct is discrete, i.e., committed
separately and severally, the convictions do not arise from the same offense and there is
no double jeopardy violation. If the charges arise from the same act or transaction, the
conduct is unitary.” State v. Pham, 281 Kan. 1227, 1246, 136 P.3d 919 (2006) (citing Schoonover,
281 Kan. at 496). The Court also provided a list of factors for use in determining whether
conduct is unitary: (1) whether the acts occur at or near the same time; (2) whether the acts
occur at the same location; (3) whether there is a causal relationship between the acts, in
particular whether there was an intervening event; and (4) whether there is a fresh impulse
motivating some of the conduct. Pham, 281 Kan. at 1247 (citing Schoonover, 281 Kan. at 497).
In Pham, several men entered a home where a married couple lived with their two
daughters and their two sons. After forcing all six members of the family into the living
room, the defendant tied them up and told one of the other men to shoot them if they
moved. When the defendant left the room, the daughters managed to escape and call the
police. Before fleeing, the gunmen shot one of the sons twice. When the police arrived, the
mother noticed that two pieces of jewelry were missing from her dresser drawer: a diamond
pendant that belonged to one of her daughters and a diamond bracelet that belonged to the
other daughter. Pham, 281 Kan. at 1231-34, 1247.
On appeal, the defendant argued that his six convictions for aggravated robbery –
one for each of the six family members who were present at the time the defendant took
the jewelry - were multiplicitous. Pham, 281 Kan. at 1236, 1245. The State conceded that not
all six counts could survive, but argued that our Supreme Court should affirm two of the
convictions – one for each daughter – because each daughter had lost jewelry. Pham, 281
Kan. at 1246.
In determining whether the defendant’s convictions were multiplicitous, our Supreme
Court first considered whether the taking of the bracelet and the taking of the necklace
constituted unitary conduct, noting that the defendant had entered one bedroom and opened
one drawer to obtain the two pieces of jewelry, both of which the mother had placed there.
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The Court “conclude[d] this constituted one transaction, i.e.,” that the convictions arose
“from the same conduct,” and proceeded to the next step in the analysis. Pham, 281 Kan. at
1247.
Importantly, the Pham Court did not analyze whether the defendant or his
codefendants used force or the threat of bodily harm at or near the same time or place,
whether there was an intervening event or events between any uses of force or threats of
bodily harm, or whether a fresh impulse motivated any of the force or threats of bodily
harm. Instead, the Court analyzed only the facts surrounding the actual taking of the
jewelry. Pham, 281 Kan. at 1247. For purposes of the first step in the multiplicity analysis,
therefore, it appears that the relevant conduct in an aggravated robbery case is the taking
or takings, and not the force or threats of bodily harm. That is, in determining whether
Mr. Doe’s conduct was unitary, this Court should apply the Schoonover factors to the taking
of the magazine only, not to Mr. Doe’s use of force or the threat of bodily harm. And if
the conduct in Pham was unitary, where the defendant took two pieces of jewelry from one
purse in one dresser drawer in one bedroom, then surely the conduct in the present case was
unitary, where Mr. Doe took only one magazine from one shelf in one store.
Because both of Mr. Doe’s convictions arose from violations of K.S.A. 21-3427, this
Court must apply the “unit of prosecution” test. Schoonover, 281 Kan. at 497. Under that
test, “[t]here can be only one conviction for each allowable unit of prosecution.” Schoonover,
281 Kan. at 497-98. The determination of the allowable unit of prosecution does not
“necessarily depend upon whether there is a single physical action or a single victim. Rather
the key is the nature of the conduct proscribed.” Gomez, 36 Kan. App. 2d at 670 (citing
Schoonover, 281 Kan. at 472). If the legislative intent is unclear, this Court applies the rule of
lenity. Pham, 281 Kan. at 1248 (citing Bell v. United States, 349 U.S. 81, 83, 99 L.Ed. 905, 75 S.
Ct. 620 [1955]).
In Pham, our Supreme Court considered whether the defendant’s six convictions for
aggravated robbery were multiplicitous. Pham, 281 Kan. at 1233. The Court noted that it
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was “unclear from the statute . . . whether the legislature intended for all six family members
to be claimed as victims for the robbery of jewelry (a) belonging to only two and (b) taken
from the bedroom of a third who was holding the jewelry for safekeeping.” Similarly, it is
“unclear from the statute . . . whether the legislature intended for” both Drew and Jones “to
be claimed as victims for the robbery of ” a magazine that belonged to neither of them. “In
the absence of clear legislative intent, the rule of lenity presumes a single physical action
harming multiple victims is only one offense.” Pham, 281 Kan. at 1248.
Moreover, the fact that Mr. Doe inflicted bodily harm upon one victim and
threatened another does not mean that his convictions survive the multiplicity analysis. In
the present case, the jury found Mr. Doe guilty of two counts of aggravated robbery: one
count for taking property from Jones and inflicting bodily harm upon him, and one count
for taking property from Drew while armed with a dangerous weapon. (R. I, 58). Similarly,
in Pham, the jury convicted the defendant of one count of aggravated robbery for taking
property from the presence of one of the sons and inflicting bodily harm upon him, and
five counts of aggravated robbery for taking property from the presence of the remaining
five family members while armed with a dangerous weapon. Pham, 281 Kan. at 1231-34.
In vacating all but one of the defendant’s convictions, the Pham Court indicated that the
number of victims (1) physically harmed or (2) threatened with a dangerous weapon does
not define the unit of prosecution in an aggravated robbery case.
Finally, our legislature has not amended K.S.A. 21-3427 since our Supreme Court
issued its opinion in Pham. In the absence of such an amendment, this Court must presume
that legislature concurs with the Court’s interpretation of the statute. See, Hall v. Dillon
Companies, Inc., 286 Kan. 777, 785, 189 P.3d 508 (2008) (“[W]hen the legislature does not
modify a statute in order to avoid a standing judicial construction of that statute, the
legislature is presumed to agree with that judicial construction.”) If our legislature intended
for each victim present, harmed, or threatened during a taking to constitute a separate
unit of prosecution in an aggravated robbery case, it would have amended the statute to
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say as much after our Supreme Court decided Pham. That the legislature has not done so
demonstrates that it did not intend for the taking of a single object from the presence of
two individuals to constitute two counts of aggravated robbery, even if the defendant inflicts
bodily harm upon, or threatens, each victim.
Because the conduct in the present case was unitary and because, “[i]n the absence of
clear legislative intent, the rule of lenity presumes a single physical action harming multiple
victims is only one offense,” this Court must vacate one of Mr. Doe’s convictions for
aggravated robbery. Pham, 281 Kan. at 1248.
Issue III: Because the district court failed to ask the jurors if the verdicts the
district court recited were, in fact, the jurors’ verdicts, this Court must
vacate Mr. Doe’s convictions.
Introduction
After the district court read the jury’s verdict aloud, it failed to ask the jurors whether
that verdict did, in fact, represent the jury’s verdict. This Court must, therefore, reverse Mr.
Doe’s remaining convictions.
Preservation of the Issue and Standard of Review
Mr. Doe did not raise this issue below. Nevertheless, “[t]here are several exceptions
to the general rule that a new legal theory may not be asserted for the first time on appeal”
including where “(1) the newly asserted theory involves only a question of law arising on
proved or admitted facts and is finally determinative of the case; [and] (2) the consideration
of the theory is necessary to serve the ends of justice or to prevent denial of fundamental
rights.” State v. Johnson, 40 Kan. App. 2d 1059, 1073, 198 P.3d 769 (2008) (citing State v.
Hawkins, 285 Kan. 842, 845, 176 P.3d 174 [2008]).
This issue raises a question of law, does not rely on disputed facts, and is “finally
determinative of the case.” Moreover, this issue implicates the fundamental right to a
unanimous jury verdict. See, U.S. v. Morris, 612 F.2d 483, 489 (10th Cir. 1979) (The right to
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a unanimous verdict is “so fundamental that it may not be waived.”) Finally, this Court has
previously reached this issue for the first time on appeal. Johnson, 40 Kan. App. 2d 1073-81.
Because this issue involves the interpretation of K.S.A. 22-3421, this Court has
unlimited review. State v. Henning, 289 Kan. 136, 139, 209 P.3d 711 (2009). This Court also
has unlimited review over questions of jury unanimity. State v. Dayhuff, 37 Kan. App. 2d 779,
784, 158 P.3d 330 (2007).
Analysis
Under K.S.A. 22-3421, “The verdict shall be written, signed by the presiding juror
and read by the clerk to the jury, and the inquiry made whether it is the jury’s verdict. If any juror
disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither
party requires the jury to be polled, the verdict is complete and the jury discharged from the
case.” (Italics added).
This Court has held that “K.S.A. 22–3421 requires the trial court to inquire in open
court whether the jury agrees with the verdict, even when the parties waive polling” in order
to “ensure a defendant’s constitutional right to a unanimous verdict and to safeguard the
concept of finality with respect to the jury verdict.” State v. Gray, 45 Kan. App. 2d 522, 249
P.3d 465 (2011), petition for review denied September 23, 2011 (citing Johnson, 40 Kan. App. 2d
at 1076). A district court’s “failure to follow the statutory mandate of K.S.A. 22–3421 to
inquire as to whether the verdict was the jury’s verdict” constitutes reversible error. Gray, 45
Kan. App. 2d at 525.
In the present case, the district court simply read the jury’s verdicts aloud, and, once
the parties declined to have the jury polled, declared, “Ladies and gentlemen of the jury, this
will conclude your - - your services as [a] juror for this year and this month.” The district
court then discharged the jury. (R. XIII, 460-62). Because the district court failed to inquire
whether the jurors agreed with the verdicts it had just read aloud, this Court must vacate Mr.
Doe’s remaining convictions and remand for a new trial.
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The State’s failure to comply with the requirements of K.S.A. 22–3421 requires
this Court to vacate Mr. Doe’s remaining convictions and remand for a new trial on those
charges.
Conclusion
For the aforementioned reasons, Mr. Doe respectfully requests that this Court (1)
reverse one of his aggravated robbery convictions as multiplicitous; (2) reverse his remaining
aggravated robbery conviction for insufficient evidence and remand it to the district court
with directions to resentence Mr. Doe for misdemeanor theft or for attempted aggravated
robbery; and (3) reverse his remaining convictions and remand for a new trial.
Respectfully submitted,
______________________________
Attorney Name, Bar Number
Name of Firm or Agency
Address
City, State ZIP
Telephone Number
Email Address
Attorney for the Appellant
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Certificate of Service
The undersigned hereby certifies that service of the above and foregoing Brief
of Appellant was made by mailing, postage prepaid, two copies to Joe Smith, xxx County
District Attorney, 600 W. Main Street, Anywhere, KS 00000; one copy to Derek Schmidt,
Attorney General, 120 SW 10th Ave., Topeka, KS 66612; and sixteen copies to Carol G.
Green, Clerk of the Appellate Courts, Kansas Judicial Center, 301 SW 10th Ave., Topeka,
KS 66612 on the _______ day of October, 2011.
______________________________
Attorney Name, Bar Number
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12-105
§ 12.37 Complaint Form: Attorney Discipline
STATE OF KANSAS
STANTON A. HAZLETT
Disciplinary Administrator
701 Jackson St.
1st Floor
Topeka, Kansas 66603-3729
Telephone: (785) 296-2486
Fax: (785) 296-6049
ALEXANDER M. WALCZAK
KIMBERLY L. KNOLL
KATE F. BAIRD
Deputy Disciplinary Administrators
GAYLE B. LARKIN
Admissions Attorney
OFFICE OF
THE DISCIPLINARY ADMINISTRATOR
COMPLAINT FORM
General Information. Complete the following form in as much detail as possible.
Provide the attorney’s full name. If you wish to complain about more than one attorney,
complete a separate complaint form for each attorney. If any of the questions do not apply
to your case, write N/A in the spaces that are not applicable.
Fee Disputes. Please be advised that we do not settle fee disputes. If you are disputing
the fee paid to your attorney, please contact one of the following fee dispute committees:
Johnson County Bar Fee Dispute Committee (913) 780-5460; Sedgwick County Bar Fee
Dispute Committee (316) 263-2251, or Kansas Bar Association Fee Dispute Committee
(785) 234-5696.
Procedure. After the materials are received by the Office of the Disciplinary
Administrator, an attorney will be assigned to review the documents and supervise the
investigation of the complaint. You will be kept informed when action occurs regarding
your complaint.
Your Name:___________________________________________________________
Your Address:_________________________________________________________
City, State, Zip:________________________________________________________
Home Phone:_____________________________Cell Phone: ___________________
Work Phone:_________________________ Fax No. __________________________
E-mail Address:________________________________________________________
________________________________________________________________________
Attorney’s Name:_______________________________________________________
Attorney’s Address:_____________________________________________________
City, State, Zip:________________________________________________________
Phone No.:____________________________________________________________
2013
12-106 Forms
INFORMATION ABOUT YOUR COMPLAINT
Did you hire the attorney
Yes __________
No ___________
If yes, when did you hire the attorney? _____________________________________
How much did you pay the attorney for attorney fees? Please attach a copy of any
receipts, cancelled checks, contracts, fee agreements, and engagement letters.
_____________________________________________________________________
What did you hire the attorney to do? _______________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
If no, what is your connection with the attorney? Please explain briefly.
-2-
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Forms
Is your complaint about a civil lawsuit or a criminal case?
12-107
Yes _________No _______
If yes, what is the name of the court? For example, the District Court of Shawnee
County, Kansas or the Municipal Court of Topeka, Kansas. __________________
__________________________________________________________________
What is the title of the case? For example, Jane Smith v. John Doe or State v. John
Doe. ____________________________________________________________
__________________________________________________________________
What is the case number? ____________________________________________
Approximately when was the case filed? _________________________________
If you are not a party to the lawsuit or the defendant in the criminal case, what is
your connection with it? Please explain briefly.
-3-
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12-108 Forms
Have you or a member of your family complained about an attorney in the past?
Yes __________ No _______________
If yes, what is the name of the attorney who was the subject of the previous complaint?
_______________________________________________________________________
Approximately when was the previous complaint filed? _________________________
What was the disposition of the previous complaint filed? _________________________
________________________________________________________________________
Factual Statement. Please prepare a detailed factual statement of your complaint on a
separate piece of paper. State the facts as you understand them. Do not include opinions
or arguments. Include information about the type of case it was, i.e. divorce, criminal,
etc., and when it started. Please include the names, addresses, and telephone numbers of
all persons who know something about your complaint. If you employed the attorney also
include how you chose the attorney, when you first met with the attorney, what the fee
agreement was, whether the agreement was written or oral, what has happened so far in the
case, and the last contact you had with the attorney. Please be advised that a copy of your
complaint will be forwarded to the attorney named in your complaint.
If you have letters or other documents you believe are relevant to your complaint, please
attach copies of the letters or other documents to this complaint. We cannot return
documents submitted to this office. You should retain a copy of all materials you submit.
Please sign and date your statement below. Further information may be requested later.
Send the completed Complaint Form, your detailed factual statement of the complaint,
along with any pertinent documents to Office of the Disciplinary Administrator, 701
Southwest Jackson, First Floor, Topeka, Kansas 66603.
The information provided in his complaint is true and correct to the best of my knowledge.
_______________________
Date
________________________________________
Complainant’s Signature
PRACTICE NOTE: This complaint form is available in a fillable pdf format in
the online version of this handbook at www.kscourts.org.
-4-
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§ 12.38 Surrender Letter—Voluntary Surrender of License to Practice Law
[Insert Date]
Carol G. Green
Clerk of the Appellate Courts
Kansas Judicial Center, Room 374
301 S.W. 10th Avenue
Topeka, Kansas 66612-1507
Dear Ms. Green,
Pursuant to Rule 217 of the Kansas Supreme Court Rules Relating to the Discipline of
Attorneys, I hereby voluntarily surrender my license to practice law in Kansas. Enclosed please
find my original Supreme Court of Kansas license to practice law as well as my current annual
attorney registration card.
I am fully aware of Rule 217 and understand that by surrendering my license the Court will
duly enter an order disbarring me and terminating all pending disciplinary actions. I understand
that other jurisdictions will be notified of the Court’s action.
I have read Rule 218 and have or will appropriately and timely comply with the Court’s
directions contained therein.
Respondent Attorney
Attorney for Respondent Attorney
cc. Stanton Hazlett, Disciplinary Administrator
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§ 12.39 Complaint Form: Judicial Discipline
KANSAS COMMISSION ON JUDICIAL QUALIFICATIONS
Kansas Judicial Center, 301 SW Tenth Avenue, Room 374, Topeka, Kansas 66612
785-296-2913
Complaint against a Judge
Person making the complaint
Address
City, State Zip Code
Phone Number
I would like to file a complaint against:
Name of Judge
Type of Judge (if known)
County or City
If the complaint involves a court case, give the case number and caption.
BEFORE YOU COMPLETE THIS FORM, please review the accompanying brochure which
describes the functions of the Commission on Judicial Qualifications. Note in particular the examples of
functions which the Commission cannot perform.
PLEASE TELL THE COMMISSION IN TWENTY-FIVE WORDS OR LESS WHAT THE JUDGE
DID THAT WAS UNETHICAL. INCLUDE A MORE DETAILED EXPLANATION ON THE
FOLLOWING PAGE.
Continue on next page
2013
12-112 Forms
Kansas Commission on Judicial Qualifications
Complaint against a Judge
Page 2
Details and specifics of complaint: Please state all specific facts and circumstances which you
believe constitute judicial misconduct or disability. Include any details, names, dates, places,
addresses, and telephone numbers which will assist the Commission in its evaluation and
investigation of this complaint. Identify the name and address of any witnesses. If there are
documents, letters, or any other materials directly related to the complaint, please include them. Do
not include documents which do not directly support or relate to the complaint, for example,
documents only generally related to the litigation. Keep a copy of everything you submit for your
records.
If additional space is required, use additional pages as needed and attach them to this page.
I certify that the allegations and statements of fact set forth above are true and correct to the best of
my knowledge, information and belief.
Date
Complainant’s Signature
PRACTICE NOTE: Submit only the original complaint to the Commission.
No copies are needed.
2013
Justices and Judges of the Appellate Courts
A-
APPENDIX A
Justices and Judges of
the Appellate Courts
Justices of the Supreme Court
Thomas Ewing, Jr., Leavenworth..................................................................... 1861-1862 (C.J.)
Samuel A. Kingman, Hiawatha......................................................................... 1861-1865 (C.J.)
Lawrence D. Bailey, Emporia....................................................................................... 1861-1869
Nelson Cobb, Lawrence..................................................................................... 1862-1864 (C.J.)
Robert Crozier, Leavenworth............................................................................ 1864-1867 (C.J.)
Jacob Safford, Topeka................................................................................................... 1865-1871
Daniel M. Valentine, Ottawa........................................................................................ 1869-1893
David J. Brewer, Leavenworth..................................................................................... 1871-1884
Albert H. Horton, Atchison.............................................................................. 1876-1895 (C.J.)
Theodore A. Hurd, Leavenworth......................................................................................... 1884
William A. Johnston, Minneapolis.................................................................... 1884-1935 (C.J.)
Stephen H. Allen, Pleasanton...................................................................................... 1893-1899
David Martin, Atchison...................................................................................... 1895-1897 (C.J.)
Frank Doster, Marion......................................................................................... 1897-1903 (C.J.)
William R. Smith, Kansas City.................................................................................... 1899-1905
Edwin W. Cunningham, Emporia............................................................................... 1901-1905
Adrian L. Greene, Newton.......................................................................................... 1901-1907
Abram H. Ellis, Beloit................................................................................................... 1901-1902
John C. Pollock, Winfield............................................................................................. 1901-1903
Rousseau A. Burch, Salina.................................................................................. 1902-1937 (C.J.)
Henry F. Mason, Garden City..................................................................................... 1903-1927
William D. Atkinson, Parsons................................................................................................ 1904
Clark A. Smith, Cawker City........................................................................................ 1904-1915
Silas W. Porter, Kansas City......................................................................................... 1905-1923
Charles B. Graves, Emporia......................................................................................... 1905-1911
Alfred W. Benson, Ottawa............................................................................................ 1907-1915
Judson S. West, Kansas City........................................................................................ 1911-1923
John S. Dawson, Hill City.................................................................................. 1915-1945 (C.J.)
John Marshall, Topeka.................................................................................................. 1915-1931
2013
Justices and Judges of the Appellate Courts
A-
2013
Richard J. Hopkins, Garden City................................................................................. 1923-1929
W. W. Harvey, Ashland........................................................................................ 1923-1956 (C.J.)
William E. Hutchinson, Garden City......................................................................... 1927-1939
William D. Jochems, Wichita................................................................................................. 1930
William A. Smith, Valley Falls............................................................................ 1930-1957 (C.J.)
Edward R. Sloan, Holton............................................................................................. 1931-1933
Walter G. Thiele, Lawrence................................................................................ 1933-1957 (C.J.)
Hugo T. Wedell, Chanute............................................................................................. 1935-1955
Harry K. Allen, Topeka................................................................................................ 1937-1946
Homer Hoch, Marion................................................................................................... 1939-1949
Jay S. Parker, Hill City......................................................................................... 1943-1966 (C.J.)
Allen B. Burch, Wichita................................................................................................ 1945-1948
Austin M. Cowan, Wichita..................................................................................................... 1948
Robert T. Price, Topeka...................................................................................... 1948-1971 (C.J.)
Edward F. Arn, Wichita................................................................................................ 1949-1950
William J. Wertz, Wichita.............................................................................................. 1950-1965
Lloyd M. Kagey, Wichita.............................................................................................. 1950-1951
Clair E. Robb, Wichita.................................................................................................. 1955-1965
Harold R. Fatzer, Kinsley................................................................................... 1956-1977 (C.J.)
Fred Hall, Dodge City.................................................................................................. 1956-1958
Alfred G. Schroeder, Newton............................................................................ 1957-1987 (C.J.)
Schuyler W. Jackson, Topeka........................................................................................ 1958-1964
John F. Fontron, Hutchinson....................................................................................... 1964-1975
Robert H. Kaul, Wamego............................................................................................. 1965-1977
Earl E. O’Connor, Overland Park.............................................................................. 1965-1971
Alex M. Fromme, Hoxie............................................................................................... 1966-1982
Perry L. Owsley, Pittsburg........................................................................................... 1971-1978
David Prager, Topeka......................................................................................... 1971-1988 (C.J.)
Robert H. Miller, Overland Park....................................................................... 1975-1990 (C.J.)
Richard W. Holmes, Wichita.............................................................................. 1977-1995 (C.J.)
Kay McFarland, Topeka..................................................................................... 1977-2009 (C.J.)
Harold S. Herd, Coldwater........................................................................................... 1979-1993
Tyler C. Lockett, Wichita.............................................................................................. 1983-2002
Donald L. Allegrucci, Pittsburg.................................................................................. 1987-2007
Fred N. Six, Lawrence................................................................................................... 1988-2002
Bob Abbott, Junction City........................................................................................... 1990-2003
Robert E. Davis, Leavenworth.......................................................................... 1993-2010 (C.J.)
Edward Larson, Hays.................................................................................................... 1995-2002
Lawton R. Nuss, Salina..........................................................................................................2002Marla J. Luckert, Topeka........................................................................................................2003Robert L. Gernon, Hiawatha....................................................................................... 2003-2005
Carol A. Beier, Wichita..........................................................................................................2003Eric S. Rosen, Topeka............................................................................................................2005Lee A. Johnson, Caldwell......................................................................................................2007W. Daniel Biles, El Dorado...................................................................................................2009Nancy L. Moritz, Topeka......................................................................................................2011-
Justices and Judges of the Appellate Courts
A-
Supreme Court Commissioners
B. F. Simpson, Topeka.................................................................................................. 1887-1893
J. B. Clogston, Eureka................................................................................................... 1887-1890
Joel Holt, Beloit.............................................................................................................1887-1890
George S. Green, Manhattan....................................................................................... 1890-1893
J. C. Strang, Larned........................................................................................................1890-1893
Earl H. Hatcher, Topeka.............................................................................................. 1963-1971
Jerome Harman, Columbus......................................................................................... 1965-1977
J. Richard Foth, Topeka................................................................................................ 1971-1977
Judges of the Court of Appeals—Northern Department
A. D. Gilkeson, Hays City................................................................................... 1895-1897 (P.J.)
T. F. Garver, Salina........................................................................................................1895-1897
George W. Clark, Topeka............................................................................................. 1895-1897
John H. Mahan, Abilene...................................................................................... 1897-1901 (P.J.)
Abijah Wells, Seneca...................................................................................................... 1897-1901
Samuel W. McElroy, Oberlin........................................................................................ 1897-1901
Judges of the Court of Appeals—Southern Department
W. A. Johnson, Garnett....................................................................................... 1895-1897 (P.J.)
A. W. Dennison, El Dorado................................................................................ 1895-1901 (P.J.)
Elrick C. Cole, Great Bend.......................................................................................... 1895-1897
B. F. Milton, Dodge City.............................................................................................. 1897-1901
M. Schoonover, Garnett............................................................................................... 1897-1901
Judges of the Court of Appeals—Modern Court
Jerome Harman, Columbus......................................................................................... 1977 (C.J.)
J. Richard Foth, Topeka...................................................................................... 1977-1985 (C.J.)
Bob Abbott, Junction City................................................................................. 1977-1990 (C.J.)
John E. Rees, Wichita.................................................................................................... 1977-1992
Corwin C. Spencer, Oakley.......................................................................................... 1977-1984
Sherman A. Parks, Topeka........................................................................................... 1977-1987
Joe Haley Swinehart, Kansas City............................................................................... 1977-1986
Marvin Meyer, Oberlin................................................................................................. 1978-1987
Mary Beck Briscoe, Council Grove.................................................................. 1984-1995 (C.J.)
J. Patrick Brazil, Eureka...................................................................................... 1985-2000 (C.J.)
Robert E. Davis, Leavenworth.................................................................................... 1986-1993
Fred N. Six, Lawrence................................................................................................... 1987-1988
Jerry G. Elliott, Wichita................................................................................................ 1987-2010
Edward Larson, Hays.................................................................................................... 1987-1995
Gary W. Rulon, Emporia.................................................................................... 1988-2011 (C.J.)
Robert L. Gernon, Hiawatha....................................................................................... 1988-2003
Robert J. Lewis, Jr., Atwood......................................................................................... 1988-2004
G. Joseph Pierron, Jr., Olathe...............................................................................................1990 M. Kay Royse, Wichita.................................................................................................. 1993-1999
2013
Justices and Judges of the Appellate Courts
A-
2013
Henry W. Green, Jr., Leavenworth......................................................................................1993Christel E. Marquardt, Topeka.................................................................................... 1995-2013
David S. Knudson, Salina............................................................................................. 1995-2003
Carol A. Beier, Wichita.................................................................................................2000-2003
Lee A. Johnson, Caldwell............................................................................................. 2001-2007
Thomas E. Malone, Wichita.......................................................................................2003- (C.J.)
Richard D. Greene, Wichita............................................................................... 2003-2012 (C.J.)
Stephen D. Hill, Paola............................................................................................................2003Patrick D. McAnany, Overland Park....................................................................................2004Nancy L. Caplinger, Topeka........................................................................................ 2004-2010
Michael B. Buser, Overland Park.........................................................................................2005Steve Leben, Fairway..............................................................................................................2007Melissa Taylor Standridge, Overland Park..........................................................................2008G. Gordon Atcheson, Westwood.........................................................................................2010Karen Arnold-Burger, Overland Park.................................................................................2011David E. Bruns, Topeka........................................................................................................2011Anthony J. Powell, Wichita....................................................................................................2013Kim R. Schroeder, Hugoton.................................................................................................2013-
Timetable for Steps in an Appeal
B-
APPENDIX B
Timetable for
Steps in an Appeal
STEP
TIME
1. Appellant serves, files notice of
appeal with clerk of district court.
(Appellant may seek a stay of the
judgment pending appeal.)
30 days from date journal entry is filed
in Chapter 60 and Chapter 61 appeals.
K.S.A. 60-2103(a). 14 days from
sentencing in criminal appeals under
Sentencing Guidelines. K.S.A. 22-3608(c).
2. Appellant requests transcript if an
evidentiary hearing was held.
21 days from notice of appeal. Rule 3.03.
3. Appellant files docketing statement,
certified copies of notice of appeal,
journal entry of judgment, any post
trial motions, journal entry ruling on
such motions, request for transcript.
21 days from notice of appeal. Rules 2.04,
2.041.
4. District clerk compiles record then
available.
14 days from notice that the appeal has
been docketed. Rule 3.02.
5. Notice of cross-appeal.
21 days from notice of appeal. K.S.A. 602103(h). Docketing statement to be filed
with clerk of appellate courts within 21
days of notice of cross-appeal.
Rule 2.04(a)(2), 2.041(a).
2013
B- Timetable for Steps in an Appeal
STEP
6. Either party may move for transfer to Supreme Court for final
determination.
20 days from notice of appeal. K.S.A. 20-3017; Rule 8.02.
7. Reporter files transcript.
40 days from service of order. Rule 3.03.
8. Written requests to clerk of the
district court to add to “prepared
record on appeal.”
Any time before record is sent to appellate
court. Rule 3.02.
9. Appellant’s brief.
30 days from completion of transcript (or
40 days from docketing if no transcript or
if transcript has been completed prior to
docketing). Rule 6.01.
10. Counsel may suggest place of
hearing by Court of Appeals.
Before appellee’s brief due. Rule 7.02(d)(3).
11. Appellee’s brief (including cross
appellant’s brief).
30 days from appellant’s brief.
Rule 6.01(b)(2).
12. Cross-appellee’s brief.
21 days from cross-appellant’s.
Rule 6.01(b)(3).
13. Reply brief.
14 days from brief to which addressed.
Rule 6.01(b)(5).
14. Clerk of appellate courts calls for
record from clerk of district court.
After time for briefs has expired, usually
when case is set for hearing. Rule 3.07.
2013
TIME
Timetable for Steps in an Appeal
STEP
B-
TIME
15. Clerk notifies parties of time and
place of hearing.
30 days before hearing. Rule 7.01(d),
7.02(e).
16. Oral arguments.
Rule 7.01(e), Rule 7.02(f).
17. Motion for rehearing or modification.
14 days of decision of Court of Appeals. Rule 7.05.
21 days of decision of Supreme Court.
Rule 7.06.
18. Motion for assessment of appellate
costs and attorney fees.
No later than 14 days after oral argument
or assignment to summary calendar.
Rule 7.07(b).
19. Petition for review by Supreme Court.
30 days of Court of Appeals decision,
regardless of a motion for rehearing by
Court of Appeals unless rehearing is
granted. Rule 7.05, 8.03(a)(1).
20. Additional copies of briefs originally
filed with the Court of Appeals.
Within 14 days after the review is granted. Rule 8.03(g)(2).
21. Supplemental briefs for Supreme
Court by either party.
30 days after review is granted. Rule
8.03(g)(3).
22. Responses to supplemental briefs.
30 days after supplemental briefs served. Rule 8.03(g)(3).
2013
B- Timetable for Steps in an Appeal
2013
Citation Guide
C-
APPENDIX C
Citation Guide
The following abbreviated Citation Guide conforms to the Guide used
by the Kansas Appellate Courts for citation to authority in appellate court
opinions.
CASE CITATIONS
The case name appearing at the top-of-the-page “header” of official
reports is the “official” name given to a case cite. For example, in the case
Northern Natural Gas Company, Appellant, v. ONEOK Field Services Company,
L.L.C., the header is Northern Natural Gas Co. v. ONEOK Field Services Co.—that
will be the name to be used for citation purposes.
Cites should be to official sources whenever possible. Secondary
sources, such as the Pacific Reports or Lawyers Edition, may not contain the
final edited version of a court’s opinion. The United States Supreme Court, for
example, may make changes to opinions up to the time the bound volume goes
to print, including removing or adding sentences or paragraphs. Reporters of
Decisions for many state courts (not Kansas) do their editorial work after an
opinion has been publicly released by the respective state court, and even the
advance sheets for the Kansas Reports and Kansas Court of Appeals Reports
2d are not considered final and “official” reports of the opinions.
FEDERAL COURTS
When citing to multiple federal cases in a single citation sentence the cites
should be in the following order: United States Supreme Court, federal courts
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C-
Citation Guide
of appeal, federal district courts. Within the same court, cases are arranged in
reverse chronological order (most recent decision first).
United States Supreme Court cases have an official citation and two
unofficial parallel citations (Supreme Court Reports and Lawyers Edition).
Cite to the official reports for case name, quotes, pinpoint reference, etc., when
possible, and put the year of the decision at the end in parentheses:
Kansas v. Ventris, 556 U.S. 586, 593, 129 S. Ct. 1841, 173 L. Ed. 2d 801
(2009)
Courts of appeals cases are reported in the Federal Reports. Give the
circuit number and year of decision:
Lees v. Carthage College, 714 F.3d 516 (7th Cir. 2013)
United States v. McCoy, 429 F.2d 739 (D.C. Cir. 1970)
For subsequent history of a court of appeals decision involving the
Supreme Court when certiorari is denied, it is only necessary to cite to the U.S.
Reports and not to the secondary reports:
United States v. Mackay, 491 F.2d 616 (10th Cir. 1973), cert. denied 416
U.S. 972 (1974)
District court cases are reported in the Federal Supplement (F. Supp.). It
is not necessary to show divisions within a district:
Beattie v. Skyline Corp., 906 F. Supp. 2d 528 (S.D. W. Va. 2012)
STATE COURTS
Citations should identify the state, the court (unless it is the highest court
of the jurisdiction), and the year of decision. When citing cases from multiple
state jurisdictions, cite in alphabetical order, with cases from the highest court of
the state cited first. If citing multiple cases from the same court, cite to the most
recent case first. Cite to both official and unofficial (West) reports, with case
name, quotes, pinpoint reference, etc. to official reports where possible:
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Gerlt v. Planning & Zoning Commission, 290 Conn. 313, 316, 963 A.2d 31
(2009); Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 160, 298 P.3d
1120 (2013); Pratt v. Kansas Dept. of Revenue, 48 Kan. App. 2d 586, 588, 296
P.3d 1128 (2013); Holmes v. Crawford Machine, Inc., 134 Ohio St. 3d 303, 307,
982 N.E.2d 643 (2012)
New York Court of Appeals (the highest court of New York) and
California Supreme Court cases are reported with independent pagination in
two reports of the National Reporter System; cases from those jurisdictions
should be cited to the official and both unofficial reports:
Cohen v. Cuomo, 19 N.Y.3d 196, 946 N.Y.S.2d 536, 969 N.E.2d 754 (2012)
Smith v. Superior Court, 54 Cal. 4th 592, 142 Cal. Rptr. 3d 880, 278 P.3d
1231 (2012)
California courts of appeals will be cited to Cal. App. and Cal. Rptr.:
Gemini Ins. Co. v. Delos Ins. Co., 211 Cal. App. 4th 719, 149 Cal. Rptr. 3d
889 (2012)
The following states do not use abbreviations in state court citations:
Alaska, Hawaii, Idaho, Ohio, Utah
Durkee v. Busk, 355 P.2d 588 (Alaska 1960)
The following states now have official opinions on-line and no longer
print official reports for cases filed after the date the on-line version was
designated the official version:
Arkansas, since 2009; Illinois, since 2012; Ohio Court of Appeals, since
2012 ( Ohio Supreme Court opinions are still printed in official reports)
Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 469 [note: the year is part of the
cite: 2009]
State v. Hoseclaw, 2013-Ohio-3486, __ N.E.2d__ (Ohio App.) [note: the year
is part of the cite: 2013]
New Mexico has official opinions on-line but continues to print its
reports.
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Citation Guide
UNPUBLISHED OPINIONS
Kansas Supreme Court Rule 7.04(g)(2) (2012 Kan. Ct. R. Annot.
60) addresses citations to unpublished opinions. The Rule clarifies that an
unpublished opinion is not binding precedent (except under the doctrines of law
of the case, res judicata, and collateral estoppel) but may be cited as persuasive
authority “with respect to a material issue not addressed in a published opinion
of a Kansas appellate court” and if it “would assist the court in disposition of
the issue.”
Unpublished opinions are cited with the case name, docket number, and
Westlaw citation; the cite should also indicate it is an unpublished opinion unless
it is clear within the context of the discussion that the opinion is unpublished:
In re Care & Treatment of Burch, No. 102,468, 2010 WL 3324271 (Kan.
App. 2010) (unpublished opinion)
PUBLISHED OPINION NOT YET IN PRINT:
If an opinion has been filed and the official cite is not yet available, cite
to the slip opinion, to the unofficial report, or to Westlaw:
Shelby County v. Holder, 570 U.S.__, 133 S. Ct. 2612, 2617, 186 L. Ed. 2d
651 (2013)
State v. Ahrens, 296 Kan.__, __P.3d__ (No. 103,662, filed December 21,
2012), slip op. at 12-13
State v. Huffmier, 297 Kan. __, 301 P.3d 669, 673 (2013)
Rinehart v. Morton Buildings, Inc., __Kan.__, __P.3d__, 2013 WL 3835833,
at *6 (No. 101,940)
PRIOR OR SUBSEQUENT HISTORY
Italicize prior and subsequent history phrases:
affirmed—aff ’d
certiorari granted—cert. granted
petition for review granted—rev. granted
petition for review denied—rev. denied
rehearing denied—reh. denied
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Morton Bldgs., Inc. v. Department of Human Resources, 10 Kan. App. 2d 197,
695 P.2d 450, rev. denied 237 Kan. 887 (1985).
United States v. Van Poyck, 77 F.3d 285 (9th Cir.), cert. denied 519 U.S. 912
(1996) [note: when year of subsequent history is same as year of original
decision, put year at the end of full citation]
When a petition for review of a Kansas Court of Appeals case has been
filed but is pending before the Supreme Court, Kansas Supreme Court Rule
8.03(i) indicates that the opinion of the Court of Appeals is not binding but
may be used for persuasive authority before the mandate is issued. The Rule
further states that an interested person citing to the opinion must note in the
citation that the case is not final:
Markovich v. Green, 48 Kan. App. 2d 567, 297 P.3d 1176 (2013) (petition
for rev. filed March 8, 2013)
SIGNALS
Citations are introduced by signals (or no signal) that indicate the purpose
for the cited authority and the degree of support for the proposition being cited.
Signals are divided into categories of support: positive, comparative, negative,
or background. Signals may be strung together within a single citation sentence
if they are of the same type, but when a different type is used, a new citation
sentence begins.
A. Signals that indicate support:
1. [No signal]
Cited authority clearly states the proposition
or identifies a quotation source or an authority
referred to in the text.
2. E.g.
Cited authority states the proposition; although
other authorities also state the proposition,
citation to them would not be necessary or
helpful.
3. Accord
Cited authority directly supports the proposition
but in a slightly different way than authority
first cited.
4. See
Cited authority directly supports the proposition
but is not stated by the cited authority.
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Citation Guide
5. See also
Cited authority constitutes additional source
material that supports the proposition; generally
used with a parenthetical explanation.
6. Cf.
“Compare.” Cited authority supports
a proposition different from the main
proposition but sufficiently analogous to lend
support; generally used with a parenthetical
explanation.
B. Signal that suggests an appropriate comparison of multiple sources
Compare ___ [and ___] with ___ [and ___]
C. Signals that indicate contradiction:
1. Contra
Cited authority states the contrary of the
proposition.
2. But see
Cited authority
proposition.
3. But cf.
Cited authority supports a proposition
analogous to the contrary of the main
proposition.
directly
contradicts
the
D. Signal that indicates background material
See generally
Cited authority presents helpful background
material related to the proposition; generally
used with a parenthetical explanation.
Baska v. Scherzer, 283 Kan. 750, 755, 156 P.3d 617 (2007); see Golden v.
Den-Mat Corporation, 47 Kan. App. 2d 450, 461, 276 P.3d 773 (2012); accord
Nungesser v. Bryant, 283 Kan. 550, 559, 153 P.3d 1277 (2007). See generally
Viernow v. Euripides Development Corp., 157 F.3d 785, 790 n.9 (10th Cir. 1998)
(issues raised for the first time in a plaintiff ’s response to a motion for summary
judgment may be considered a request to amend the complaint).
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STATUTES, RULES, AND REGULATIONS
FEDERAL:
Statutes:
A. United States Code (U.S.C.)
__ U.S.C. § __ (20__): 42 U.S.C. § 4332(2)(C)(iii) (2006)
B. Statutes currently in force but not in U.S.C. (by reverse chronological
order of enactment)
Rules:
A. Federal Rules of Evidence: Fed. R. Evid. 702
B. Federal Rules of Civil Procedure: Fed. R. Civ. P. 32(a)(3)(B)
C. Federal Rules of Criminal Procedure: Fed. R. Crim. P. 58
Regulations:
Code of Federal Regulations: (name), __C.F.R. § __ (20__): Cardiovascular
Prosthetic Devices, C.F.R. § 870.3545 (2013)
STATES:
Kansas statutes:
A. Cite to bound volume if in effect: K.S.A. 60-455
B. Cite to Supplement if in effect; however, if an older Supp. was in
effect but there are no substantive changes to that statute in the
current Supp., it is permissible to cite to the most recent Supp.:
K.S.A. 2012 Supp. 21-6001
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Citation Guide
C. Entire statutory act:
1. Kansas Tort Claims Act, K.S.A. 75-6101 et seq. [cite to bound
volume even if some parts of Act were amended and appear in
the Supp.]
2. Revised Kansas Sentencing Guidelines Act, K.S.A. 2012 Supp.
21-6801 et seq. [entire act appears in the Supp.]
D. Citation to superseded statute book:
If the applicable statute to be cited is in a superseded bound volume
of the K.S.A.’s, include the name of the Revisor of Statutes in
parentheses following the cite to distinguish it from the current bound
volume: K.S.A. 21-3721 (Weeks).
Kansas Session Laws:
Cite to L., year, chapter, and section: L. 2010, ch. 51, sec. 1 [note: for
session laws, sec. is used as the abbreviation instead of the symbol §]
Rules of the Kansas Supreme Court:
The official source for the Supreme Court Rules is the blue Rule Book
that is published and annotated annually by the Reporter’s office. Cite
the year, Kan. Ct. R. Annot. __: Rule 133 (2012 Kan. Ct. R. Annot.
238).
Kansas Administrative Regulations:
Current regulation: K.A.R. 36-17-8
Amendment to current regulation: K.A.R. 82-4-56a (2012 Supp.)
Noncurrent regulation: K.A.R. 74-11-6 (2003)
Other State Statutes:
Cite to state statutes alphabetically by state when citing to statutes from
multiple states
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MISCELLANEOUS CITATIONS
Attorney General Opinions:
Cite to year-number: Att’y Gen. Op. No. 2013-08
Pattern Jury Instructions for Kansas (PIK):
PIK Crim. 4th 54.290
PIK Crim. 4th 56.080 (2012 Supp.)
PIK Civ. 4th 123.43
Constitutions:
United States Constitution:
U.S. Const. amend. XIV, § 1
U.S. Const. art. I, § 10, cl. 2
Kansas Constitution:
Kan. Const. art. 11, § 1 (2012 Supp.)
Kan. Const. Bill of Rights, § 5
Restatements:
Restatements are identified by the year adopted, not by the year of
publication:
Restatement (Second) of Contracts § 238 (1979)
Restatement (Third) of Torts § 9, p. 187 (1997)
Occasionally, the number of a Tentative Draft is necessary to identify
the Restatement since there are no Supplements as such to the
Restatements:
Restatement (Third) of Agency § 8.06 (Tent. Draft No. 6, 2005)
Books and Digests:
Give last name of author as well as volume numbers where
appropriate:
1. Williston on Contracts
11 Lord, Williston on Contracts 4th § 31:6 (2012)
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Citation Guide
2. Wigmore on Evidence:
Kaye, Bernstein & Mnookin, The New Wigmore: Expert
Evidence § 4.10 (2d ed. 2010)
3. Wright etc. on Federal Practice and Procedure:
16 Wright, Miller & Cooper, Federal Practice and Procedure:
Jurisdiction § 3920 (3d ed. 2012)
Dictionaries:
Cite by name, page, edition, and date:
1. Black’s Law Dictionary 977 (9th ed. 2009)
2. Webster’s Third New International Dictionary 699 (1993)
Law Review and Journal Articles:
Cite by author, title, volume, name of publication, page, and year.
Abbreviate where appropriate.
1. Articles:
Dau-Schmidt, Promises to Keep: Ensuring the Payment of Americans’
Pension Benefits in the Wake of the Great Recession, 52 Washburn L.J.
393 (2013)
2. Comments (name of student author is not given):
Comment, Reduction in the Protection for Mentally Ill Criminal
Defendants: Kansas Upholds the Replacement of the M’Naughten
Approach with the Mens Rea Approach, Effectively Eliminating the
Insanity Defense, 44 Washburn L.J. 213 (2004)
Comment, “Fraccident”: An Argument Against Strict Liability for
Hydraulic Fracturing, 60 Kan. L. Rev. 1215 (2012)
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Citation Guide
3. Notes (name of student author is not given)
Note, Enabling Television Competition in a Converged Market, 126
Harv. L. Rev. 2083 (2013)
4. Bar association journal:
Zimmerman, E-Filing: Alive and Well, 82 J.K.B.A. 13 (March
2013)
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Index—General
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Index-General
References are to Section Numbers
ABANDONED ISSUES
Effect of ..................................................................................................................... 8.28
ABUSE OF DISCRETION
Generally...............................................................................................................8.4, 8.7
ACQUIESCENCE TO JUDGMENT
Effect of ..................................................................................................................... 8.24
ADMINISTRATOR
Disciplinary.........................................................................................................2.7, 11.3
Judicial........................................................................................................................... 2.5
AGENCY DECISIONS, REVIEW OF
Agency action, defined............................................................................................... 6.2
Burden of proof ....................................................................................................... 6.13
Checklist for............................................................................................................... 6.17
Exempt agencies........................................................................................................ 6.15
Exhaustion of remedies............................................................................................. 6.5
Filing for................................................................................................................6.7, 6.8
Generally.......................................................................................................6.1-6.2, 6.15
Harmless error rule................................................................................................... 6.13
Jurisdiction.............................................................................................................6.6, 6.7
New or additional issues on review........................................................................ 6.11
Petition for.............................................................................................................6.7, 6.9
Primary jurisdiction doctrine..................................................................................... 6.6
Record of agency action.......................................................................................... 6.12
Remedies............................................................................................................6.10, 6.14
Scope of review................................................................................................6.13, 6.15
Standard of review........................................................................................... 8.15-8.16
Standing........................................................................................................................ 6.4
Stay pending............................................................................................................... 6.10
Tax appeals . .......................................................................................................6.7, 12.2
Temporary remedies................................................................................................. 6.10
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References are to Section Numbers
Timing........................................................................................................................... 6.8
Venue............................................................................................................................. 6.7
Workers compensation cases................................................................6.16, 12.3-12.4
AGREED STATEMENT
Appeal on................................................................................................................... 7.24
APPEAL OF RIGHT
From Court of Appeals to Supreme Court.................................................5.28, 7.45
APPEARANCE
Generally......................................................................................................... 7.18, 12.17
ARBITRATION MOTION
Appeal from denial of .............................................................................................. 5.18
ARRESTING JUDGMENT
Appeal from order...................................................................................................... 5.8
ATTORNEY FEES
Generally......................................................................................................... 7.58, 12.34
BRIEFS
Additional time, motion for.............................................................. 7.30, 12.23-12.24
Amicus brief ...........................................................................................7.33, 9.6, 12.31
Appellee.................................................................................................................9.1, 9.3
Color code.................................................................................................................... 9.7
Contents......................................................................................................9.2-9.4, 12.36
Correction in brief, motions re ....................................................... 7.31, 12.26-12.27
Cover..................................................................................................................9.7, 12.36
Criminal cases............................................................................................................ 9.10
Cross-appellant ....................................................................................................9.1, 9.3
Cross-appellee.......................................................................................................9.1, 9.4
Disciplinary proceedings.............................................................................11.15-11.16
E-brief .......................................................................................................................... 9.7
Effective writing tips................................................................................................. 9.11
Extension of time, motion for......................................................... 7.30, 12.23-12.24
Format................................................................................................................9.7, 12.36
Generally................................................................................................................9.1, 9.2
Page limits..........................................................................................................9.7, 12.25
Parties referenced in.................................................................................................... 9.8
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References are to Section Numbers
Post-conviction cases................................................................................................ 9.10
References in................................................................................................................ 9.8
Reply.......................................................................................................................9.1, 9.5
Sample brief . ...........................................................................................................12.36
Service........................................................................................................................... 9.9
Standard of review referenced in.............................................................................. 8.3
Timing . ........................................................................................7.30, 9.1, 12.23-12.24
CERTIFIED QUESTIONS
Generally..................................................................................................................... 5.36
CIVIL CASES
Arbitration motion, appeal from denial of ........................................................... 5.18
Collateral order doctrine.......................................................................................... 5.18
Court of Appeals jurisdiction, generally................................................................ 5.17
Direct appeals to Supreme Court........................................................................... 5.16
Discovery motions, appeals from........................................................................... 5.18
Dispositive motions, appeals from......................................................................... 5.18
Docketing statement . ....................................................................... 7.16, 12.10-12.11
Final judgment on less than all claims or parties, appeal from.......................... 5.21
Final orders, appeal from......................................................................................... 5.18
Foreclosure order, appeal from............................................................................... 5.18
Generally............................................................................................................ 5.16-5.18
Interlocutory appeals .............................................................................5.19-5.20, 12.1
Judgments, appeals from.......................................................................................... 5.18
Juvenile proceedings................................................................................................. 5.23
Magistrate judges, appeals from.............................................................................. 5.32
Municipal court to district court, appeals from.................................................... 5.34
Parental rights termination, appeal from denial of . ............................................ 5.18
Post-judgment motions, appeals from................................................................... 5.18
Post-trial motions, appeals from............................................................................. 5.18
Pre-trial motions, appeals from............................................................................... 5.18
Probate decisions, appeal of orders from......................................................5.22, 7.5
Redemption order, appeal from.............................................................................. 5.18
Remand order, appeal from..................................................................................... 5.18
CLERK
Of the Appellate Courts............................................................................................ 2.3
COLLATERAL ORDER DOCTRINE
Generally..................................................................................................................... 5.18
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References are to Section Numbers
CONFIDENTIALITY
In the Appellate Courts............................................................................................ 3.12
CONSOLIDATION OF APPEALS
Generally......................................................................................................... 7.28, 12.21
CORRECT RULING FOR ERRONEOUS REASON
Effect of ..................................................................................................................... 8.27
COSTS
Disciplinary proceedings........................................................................................11.18
Generally......................................................................................................... 7.57, 12.34
COURT OF APPEALS
Appeal of right.................................................................................................5.28, 7.45
Assignment of cases.................................................................................. 3.7, 3.8, 3.11
Calendar........................................................................................................................ 3.7
Clerk.............................................................................................................................. 2.3
Criminal cases, see CRIMINAL CASES
Decisions, see also MANDATE.........................................................................3.8, 7.43
Direct appeals in criminal cases................................................................................ 5.3
History .................................................................................................. Chapt 1, App A
Judges, see JUDGES
Jurisdiction, generally................................................................................................ 5.17
Juvenile cases, see JUVENILE CASES
Mandate, see MANDATE
Memorandum.......................................................................................................3.7, 4.2
Modification, motion for............................................................................. 7.44, 12.33
Motions, generally..................................................................................................... 3.10
Opinions, see also Mandate..........................................................................3.8-3.9, 7.43
Oral argument.................................................................................. 3.7, 7.39-7.42, 10.4
Original jurisdiction.................................................................................................... 4.1
Petition for review........................................................................... 3.5, 5.29, 7.46-7.48
Pre-hearing................................................................................................................... 3.7
Rehearing, motion for..........................................................................3.10, 7.44, 12.33
Reporter........................................................................................................................ 2.4
Screening..............................................................................................................3.7, 7.38
Summary calendar..................................................................................................... 7.38
Transfer motion by.................................................................................................... 5.27
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References are to Section Numbers
CREATION OF KANSAS APPELLATE COURTS
Generally....................................................................................................................... 5.1
CRIMINAL CASES
Arresting judgment, appeal from order................................................................... 5.8
Direct appeals.......................................................................................................5.2, 5.3
Dismissal of complaint or indictment, appeal from.............................................. 5.7
Diversion agreement, appeal of order denying revocation of .......................... 5.11
Docketing statement..................................................................................... 7.16, 12.12
Generally................................................................................................................5.3, 5.6
Interlocutory appeals................................................................................................ 5.11
Judgment, appeal following....................................................................................... 5.4
Juvenile cases, see JUVENILE PROCEEDINGS
Magistrate judges, appeals from.............................................................................. 5.31
Multiple bases for appeal......................................................................................... 5.10
Municipal court to district court, appeals from.................................................... 5.33
New trial order, appeal on....................................................................................... 5.10
Notice of appeal.......................................................................................................... 7.7
Pleas, appeal following................................................................................................ 5.5
Probation, appeal of order denying revocation of .............................................. 5.11
Questions reserved, appeal on.................................................................................. 5.9
Sentencing guidelines appeals.........................................................................5.12, 5.15
Stay pending appeal..........................................................................................7.15, 12.9
Supreme Court, direct appeals to............................................................................. 5.2
Suppression of evidence, appeal from order for..........................................5.7, 5.11
CROSS-APPEALS
Generally..................................................................................................7.8, 12.7, 12.11
DECISIONS, See also MANDATE; OPINIONS
Court of Appeals...............................................................................................3.8, 7.43
Generally..................................................................................................................... 7.43
Supreme Court............................................................................................ 3.2, 3.6, 7.43
DIRECT APPEALS
Court of Appeals in criminal cases.......................................................................... 5.3
Supreme Court....................................................................................................5.2, 5.16
DISCIPLINARY PROCEEDINGS, See also JUDICIAL DISCIPLINE
Administrator......................................................................................................2.7, 11.3
Admonition, informal.............................................................................................11.10
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References are to Section Numbers
Aggravating circumstances....................................................................................11.13
Appeal.......................................................................................................................11.11
Board........................................................................................................................... 11.4
Briefs..............................................................................................................11.15-11.16
Complaint, formal...................................................................................................11.11
Complaints..................................................................................................... 11.5, 12.37
Costs..........................................................................................................................11.18
Criminal conduct.....................................................................................................11.11
Disabled inactive status due to addiction or mental illness.............................. 11.14
Disbarment...............................................................................................................11.18
Discipline, generally.........................................................................11.11, 11.13, 11.18
Diversion program.................................................................................................... 11.9
Generally...................................................................................................................11.11
Hearing panel...........................................................................................................11.11
History........................................................................................................................ 11.1
Investigations............................................................................................................. 11.6
Judges, see JUDICIAL DISCIPLINE
Jurisdiction.................................................................................................................. 11.2
Lawyers’ Fund for Client Protection....................................................................11.22
Mitigating circumstances........................................................................................11.13
Notice of hearing....................................................................................................11.11
Oral argument.............................................................................................. 11.15, 11.17
Probation..................................................................................................................11.12
Procedural rules..................................................................................11.4, 11.11, 11.19
Reinstatement...........................................................................................................11.21
Report of findings....................................................................................... 11.11, 11.16
Review committee..................................................................................................... 11.7
Sanctions, generally..........................................................................11.11, 11.13, 11.18
Standards for imposing discipline.........................................................................11.13
Supreme Court proceedings and opinions............................................... 11.15-11.18
Surrender of license to practice, voluntary............................................. 11.20, 12.38
Suspension................................................................................................................11.18
Suspension, temporary............................................................................................. 11.8
DISCOVERY MOTIONS
Appeals from.............................................................................................................. 5.18
DISMISSAL OF APPEAL
Involuntary dismissal, motion for............................................................... 7.37, 12.30
Voluntary dismissal, motion for.................................................................. 7.36, 12.29
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References are to Section Numbers
DISMISSAL OF COMPLAINT OR INDICTMENT
Appeal from................................................................................................................. 5.7
DISMISSAL MOTIONS
Review of .......................................................................................................... 8.19-8.20
DISPOSITIVE MOTIONS
Appeals from.............................................................................................................. 5.18
DIVERSION AGREEMENT
Appeal of order denying revocation of ................................................................ 5.11
DOCKET FEES
Generally..................................................................................................................... 7.16
Original actions............................................................................................................ 4.3
DOCKETING THE APPEAL
Fees, see DOCKET FEES
Generally.................................................................................................................... 7.16
Minors, appeals by..................................................................................................... 7.17
Parental notice waiver requirements....................................................................... 7.17
Statement, see DOCKETING STATEMENT
Timing............................................................................................................. 7.16, 12.14
DOCKETING STATEMENT, See also DOCKETING THE APPEAL
Answer......................................................................................................................12.13
Civil............................................................................................................................12.10
Civil cross-appeal.....................................................................................................12.11
Criminal....................................................................................................................12.12
Generally..................................................................................................................... 7.16
ERROR, see REVIEW OF ISSUES AND ERRORS
EXTENSION OF TIME
Motion for.................................................................................................................. 7.30
FILING
Agency decisions, review of ...............................................................................6.7, 6.8
Agreed statement....................................................................................................... 7.24
Faxing.......................................................................................................................... 12.8
Generally.............................................................................................................7.9, 12.8
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Index—General
References are to Section Numbers
Notice of appeal....................................................................................................7.2-7.3
Original actions............................................................................................................ 4.2
Service..................................................................................................................7.9, 12.8
Transcripts.................................................................................................................. 7.22
FINAL JUDGMENT ON FEWER THAN ALL CLAIMS OR PARTIES
Appeal from............................................................................................................... 5.21
FINAL ORDERS
Appeal from............................................................................................................... 5.18
FORECLOSURE ORDER
Appeal from............................................................................................................... 5.18
FORMS
Admission pro hac vice out-of-state attorney: Kansas attorney’s motion......... 12.15
Admission pro hac vice out-of-state attorney: out-of-state attorney’s
verified application...........................................................................................12.16
Application to file amicus brief ..............................................................................12.31
Application to take a civil interlocutory appeal.................................................... 12.1
Brief – sample..........................................................................................................12.36
Briefing checklist.....................................................................................................12.35
Complaint form: attorney discipline....................................................................12.37
Complaint form: judicial discipline.......................................................................12.39
Docketing statement – civil...................................................................................12.10
Docketing statement – civil cross-appeal............................................................ 12.11
Docketing statement – criminal............................................................................12.12
Docketing statement – answer..............................................................................12.13
Entry of appearance...............................................................................................12.17
Fax transmission sheet.............................................................................................. 12.8
Motion for attorney fees and costs.......................................................................12.34
Motion for extension of time to file brief .......................................................... 12.23
Motion for involuntary dismissal..........................................................................12.30
Motion for modification or rehearing..................................................................12.33
Motion for release after conviction........................................................................ 12.9
Motion to consolidate.............................................................................................12.21
Motion to correct brief ..........................................................................................12.26
Motion to docket appeal out of time...................................................................12.14
Motion to exceed page limitations........................................................................12.25
Motion to immediately file brief out of time..................................................... 12.24
Motion to substitute corrected brief ...................................................................12.27
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References are to Section Numbers
Motion to substitute parties...................................................................................12.28
Motion to transfer to Supreme Court..................................................................12.22
Motion to withdraw as appointed counsel.......................................................... 12.18
Notice of appeal – Court of Appeals.................................................................... 12.6
Notice of appeal – Supreme Court........................................................................ 12.5
Notice of cross-appeal............................................................................................. 12.7
Notice of voluntary dismissal...............................................................................12.29
Petition for judicial review of an order of the Court of Tax Appeals............. 12.2
Petition for judicial review– workers compensation cases.................................. 12.3
Request for additions to the record on appeal.................................................... 12.20
Request for certification of record – workers compensation cases.................. 12.4
Request for transcript.............................................................................................12.19
Suggestion for place of hearing............................................................................12.32
Surrender letter – voluntary surrender of license to practice law................... 12.38
HABEAS CORPUS
See also ORIGINAL ACTIONS................................................................................ 4.8
HARMLESS ERROR RULE
Generally..............................................................................................................6.13, 8.6
HEARING
Notice of .................................................................................................................... 7.41
Suggestion of place for................................................................................ 7.40, 12.32
HISTORY
Generally................................................................................................ Chapt 1, App A
Judges, list of .........................................................................................................App A
Justices, list of . ......................................................................................................App A
INEFFECTIVE ASSISTANCE OF COUNSEL
Review of ................................................................................................................... 8.17
INTERLOCUTORY APPEALS
Civil cases.................................................................................................5.19-5.20, 12.1
Criminal cases............................................................................................................ 5.11
INVITED ERROR
Effect of ..................................................................................................................... 8.25
2013
I-10
Index—General
References are to Section Numbers
JUDGES
Disciplinary proceedings, see JUDICIAL DISCIPLINE
Disqualification of .............................................................................................3.6, 3.11
Generally................................................................................................................2.1, 2.2
List of .....................................................................................................................App A
JUDGMENT, APPEAL FROM
Civil cases................................................................................................................... 5.18
Criminal cases.............................................................................................................. 5.4
JUDICIAL ADMINISTRATOR
Generally....................................................................................................................... 2.5
JUDICIAL DISCIPLINE
Cease and desist orders..........................................................................................11.28
Commission..................................................................................................11.23-11.25
Complaint.......................................................................................... 11.26-11.27, 12.39
Confidentiality..........................................................................................................11.29
Disciplinary action...................................................................................... 11.28, 11.30
Disposition without formal proceedings............................................................. 11.28
Formal proceedings................................................................................................11.30
Hearing on notice of formal proceedings........................................................... 11.30
History......................................................................................................................11.23
Investigation................................................................................................. 11.27, 11.30
Jurisdiction................................................................................................................11.24
Notice of formal proceedings...............................................................................11.30
Sanctions....................................................................................................... 11.28, 11.30
Supreme Court proceedings..................................................................................11.30
JURISDICTION
Concurrent................................................................................................................... 4.1
Court of Appeals, generally..................................................................................... 5.17
Creation of appellate courts...................................................................................... 5.1
Direct appeals to Supreme Court....................................................................5.2, 5.16
Disciplinary proceedings.......................................................................................... 11.2
Generally....................................................................................................................... 5.1
Original, see also ORIGINAL ACTIONS................................................................ 4.1
Primary jurisdiction doctrine in agency decisions.................................................. 6.6
Supreme Court, direct appeals to....................................................................5.2, 5.16
2013
Index—General
I-11
References are to Section Numbers
JURY INSTRUCTIONS
Review of ................................................................................................................... 8.18
JUSTICES
Disqualification of ...................................................................................................... 3.6
Generally....................................................................................................................... 2.1
List of .....................................................................................................................App A
JUVENILE PROCEEDINGS
Civil.............................................................................................................................. 5.23
Notice of appeal.......................................................................................................... 7.4
Offender, appeals by................................................................................................. 5.13
Prosecution, appeals by............................................................................................ 5.14
Sentencing guidelines appeals.................................................................................. 5.15
Stay pending appeal................................................................................................... 7.13
LIBRARIAN
Supreme Court Law Library...................................................................................... 2.6
MAGISTRATE JUDGES
Appeals from..................................................................................................... 5.31-5.32
MANDAMUS
Generally, see also ORIGINAL ACTIONS.............................................................. 4.7
MANDATE
Court of Appeals...................................................................................................... 7.61
Generally..................................................................................................................... 7.59
Stay issuance of ......................................................................................................... 7.62
Supreme Court........................................................................................................... 7.60
MINORS
Appeals by.................................................................................................................. 7.17
MOOT ISSUES
Effect of ..................................................................................................................... 8.26
MORTGAGE FORECLOSURES
Generally....................................................................................................................... 7.6
2013
I-12
Index—General
References are to Section Numbers
MOTIONS
Additional time, motion for.............................................................. 7.30, 12.23-12.24
Amicus brief, application to file.................................................................... 7.33, 12.31
Arbitration motion, appeal from denial of ........................................................... 5.18
Attorney fees.................................................................................................. 7.58, 12.34
Consolidation of appeals............................................................................. 7.28, 12.21
Correction in brief, motion re.......................................................... 7.31, 12.26-12.27
Costs................................................................................................................ 7.57, 12.34
Discovery motions, appeals from........................................................................... 5.18
Dispositive motions, appeals from......................................................................... 5.18
Dismissal of appeal, see DISMISSAL OF APPEAL
Docket out of time, motion to.............................................................................12.14
Extension of time, motion for......................................................... 7.30, 12.23-12.24
Generally.................................................................................................... 3.4, 3.10, 7.29
Involuntary dismissal, motion for............................................................... 7.37, 12.30
Modification, motion for............................................................................. 7.44, 12.33
Out-of-state attorney motion to practice.......................................7.18, 12.15, 12.16
Out of time instanter, motion to file brief ......................................................... 12.24
Page limitations, motion to exceed.......................................................................12.25
Post-judgment motions, appeals from................................................................... 5.18
Post-trial motions, appeals from............................................................................. 5.18
Pre-trial motions, appeals from............................................................................... 5.18
Record on appeal, request for additions to............................................... 7.26, 12.20
Rehearing, motion for, see REHEARING, MOTION FOR
Release after conviction............................................................................................ 12.9
Substitute corrected brief, motion to......................................................... 7.31, 12.27
Substitute parties, motion to........................................................................ 7.32, 12.28
Transcript, request for.................................................................................. 7.21, 12.19
Transfer motion by Court of Appeals................................................................... 5.27
Transfer motion by party....................................................................5.25, 5.28, 12.22
Transfer motion by Supreme Court....................................................................... 5.26
Voluntary dismissal, motion for.................................................................. 7.36, 12.29
Withdraw as appointed counsel, motion to.............................................. 7.19, 12.18
MULTIPLE BASES FOR APPEAL
Generally..................................................................................................................... 5.10
MUNICIPAL COURT TO DISTRICT COURT
Appeals from..................................................................................................... 5.33-5.34
NEW TRIAL ORDER
Appeal on................................................................................................................... 5.10
2013
Index—General
I-13
References are to Section Numbers
NOTICE OF APPEAL
Chapter 61 cases.......................................................................................................... 7.3
Contents of .................................................................................................................. 7.2
Criminal cases.............................................................................................................. 7.7
Cross-appeals......................................................................................................7.8, 12.7
Filing........................................................................................................................7.2-7.3
Generally.................................................................................................... 7.1, 12.5, 12.6
Juvenile cases................................................................................................................ 7.4
Mortgage foreclosures................................................................................................ 7.6
Premature..................................................................................................................... 7.2
Probate cases.......................................................................................................5.22, 7.5
Timing.....................................................................................................................7.2-7.3
Unique circumstances doctrine................................................................................. 7.2
Workers compensation cases..........................................................................6.16, 12.3
OPINIONS
See also DECISIONS; MANDATE
Court of Appeals........................................................................................3.8-3.9, 7.43
Generally..................................................................................................................... 7.43
Supreme Court....................................................................................................3.3, 7.43
ORAL ARGUMENT
Body of argument..................................................................................................... 10.6
Conclusion.................................................................................................................. 10.8
Court of Appeals............................................................................ 3.7, 7.39-7.42, 10.4
Delivery style.............................................................................................................. 10.7
Disciplinary proceedings............................................................................ 11.15, 11.17
Generally..................................................................................................................... 10.1
Introduction............................................................................................................... 10.5
Motion for.................................................................................................................. 7.38
Outline........................................................................................................................ 10.2
Preparation for........................................................................................................... 10.2
Questions from the court...............................................................................10.2, 10.6
Rebuttal....................................................................................................................... 10.9
Review of prior arguments....................................................................................10.10
Supreme Court................................................................................. 3.1, 7.39-7.42, 10.3
ORIGINAL ACTIONS
Disposition................................................................................................................... 4.4
Docket fee.................................................................................................................... 4.3
Filing procedure........................................................................................................... 4.2
Generally....................................................................................................................... 3.4
2013
I-14
Index—General
References are to Section Numbers
Habeas corpus............................................................................................................. 4.8
Jurisdiction, original.................................................................................................... 4.1
Mandamus.................................................................................................................... 4.7
Petitions in.............................................................................................................4.2, 4.4
Procedure for filing..................................................................................................... 4.2
Quo warranto............................................................................................................... 4.6
Record in....................................................................................................................... 4.5
OUT-OF-STATE ATTORNEY
Admission to practice before appellate courts..............................7.18, 12.15, 12.16
PARENTAL NOTICE WAIVER REQUIREMENTS
Generally..................................................................................................................... 7.17
PARENTAL RIGHTS TERMINATION
Appeal from denial of .............................................................................................. 5.18
PARTY MOTION FOR TRANSFER OF CASE
From Court of Appeals to Supreme Court.................................................5.25, 5.28
PETITION FOR REVIEW
Contents...................................................................................................................... 7.48
Cross-petitions and responses................................................................................. 7.50
Effect on mandate..................................................................................................... 7.54
Format......................................................................................................................... 7.51
Generally.................................................................................................... 3.5, 5.29, 7.46
Grant or denial..................................................................................................7.49, 7.56
Procedure following.................................................................................................. 7.52
Timing......................................................................................................................... 7.47
PETITIONS IN ORIGINAL ACTIONS
Generally...............................................................................................................4.2, 4.4
PLEAS
Appeal following......................................................................................................... 5.5
POST-JUDGMENT MOTIONS
Appeals from.............................................................................................................. 5.18
POST-TRIAL MOTIONS
Appeals from.............................................................................................................. 5.18
2013
Index—General
I-15
References are to Section Numbers
PRESERVATION OF ISSUES
Generally....................................................................................................................... 8.4
PRESUMPTION OF VALIDITY
Of district court judgments..................................................................................... 8.30
PRE-TRIAL MOTIONS
Appeals from.............................................................................................................. 5.18
PROBATE DECISIONS
Appeal of orders from............................................................................ 5.22, 7.5, 7.14
PROBATION
Appeal of order denying revocation of ................................................................ 5.11
PROSECUTORIAL MISCONDUCT
Review of ................................................................................................................... 8.21
QUESTIONS RESERVED
Appeal on..................................................................................................................... 5.9
QUO WARRANTO
Generally, see also ORIGINAL ACTIONS.............................................................. 4.6
RECORD ON APPEAL
Additions to, request for.............................................................................. 7.26, 12.20
Agency record............................................................................................................ 6.12
Agreed statement....................................................................................................... 7.24
District court clerk’s preparation of ...................................................................... 7.25
Failure to designate record, effect of ..................................................................... 8.29
Transcripts see TRANSCRIPTS
Transmission of ........................................................................................................ 7.27
Trial court record....................................................................................................... 7.20
REDEMPTION ORDER
Appeal from............................................................................................................... 5.18
REHEARING, MOTION FOR
Court of Appeals.................................................................................3.10, 7.44, 12.33
Generally......................................................................................................... 7.44, 12.33
Supreme Court........................................................................................3.4, 7.44, 12.33
2013
I-16
Index—General
References are to Section Numbers
REMAND ORDER
Appeal from............................................................................................................... 5.18
REPORTER
Of Decisions................................................................................................................ 2.4
REVERSIBLE VS. HARMLESS ERROR
Generally..............................................................................................................6.13, 8.6
REVIEW OF ISSUES AND ERRORS
Abandoned issues, effect of .................................................................................... 8.28
Abuse of discretion.............................................................................................8.4, 8.7
Acquiescence to judgment, effect of ..................................................................... 8.24
Agency decisions, review of ........................................................................... 8.14-8.15
Briefs, standard of review referenced in.................................................................. 8.3
Correct ruling for erroneous reason, effect of .................................................... 8.27
Cumulative error........................................................................................................ 8.16
Defined......................................................................................................................... 8.2
Determining appropriate standard........................................................................... 8.5
Dismissal motions, review of . ....................................................................... 8.19-8.20
Factual evidence based on documents................................................................... 8.12
Factual evidence undisputed.................................................................................... 8.12
Factual issues with burden of proof . .................................................................... 8.11
Factual issues w/o burden of proof . ............................................................. 8.8-8.10
Generally................................................................................................8.1-8.2, 8.5, 8.30
Ineffective assistance of counsel, review of ......................................................... 8.17
Invited error, effect of ............................................................................................. 8.25
Jury instructions, review of ..................................................................................... 8.18
Legal issues, broad standard for.............................................................................. 8.13
Moot issues, effect of ............................................................................................... 8.26
Preservation of issues................................................................................................. 8.4
Presumption of validity............................................................................................ 8.30
Prosecutorial misconduct, review of ..................................................................... 8.21
Record, effect of failure to designate..................................................................... 8.29
Reversible vs. harmless error............................................................................6.13, 8.6
Standard of review, generally..............................................................8.1-8.2, 8.5, 8.30
Strategy for framing issues......................................................................................... 8.6
Substantial competent evidence standard................................................................ 8.9
Sufficiency of evidence standard............................................................................ 8.10
Summary judgment, review of ............................................................................... 8.22
2013
Index—General
I-17
References are to Section Numbers
SENTENCING GUIDELINES APPEALS
Generally..................................................................................................................... 5.12
Juvenile cases.............................................................................................................. 5.15
SERVICE
Generally....................................................................................................................... 7.9
SMALL CLAIMS COURT
Appeals from.............................................................................................................. 5.35
STANDARD OF REVIEW, SEE REVIEW OF ISSUES AND ERRORS
STAY ISSUANCE OF MANDATE
Generally..................................................................................................................... 7.62
STAY PENDING APPEAL
Agency decisions, stay pending review of . ........................................................... 6.10
Chapter 61 appeals.................................................................................................... 7.12
Criminal cases...................................................................................................7.15, 12.9
Generally............................................................................................................ 7.10-7.11
Juvenile cases.............................................................................................................. 7.13
Probate cases.............................................................................................................. 7.14
STRATEGY FOR FRAMING ISSUES
Generally....................................................................................................................... 8.6
SUBSTANTIAL COMPETENT EVIDENCE STANDARD
Generally....................................................................................................................... 8.9
SUBSTITUTION OF PARTIES
Motion for...................................................................................................... 7.32, 12.28
SUFFICIENCY OF EVIDENCE STANDARD
Generally..................................................................................................................... 8.10
SUMMARY JUDGMENT
Review of ................................................................................................................... 8.22
SUPPRESSION OF EVIDENCE
Appeal from order for.......................................................................................5.7, 5.11
2013
I-18
Index—General
References are to Section Numbers
SUPREME COURT
Appeal of right.................................................................................................5.28, 7.45
Calendar........................................................................................................................ 3.1
Certified questions to................................................................................................ 5.36
Clerk.............................................................................................................................. 2.3
Criminal cases.............................................................................................................. 5.2
Decisions, see also MANDATE................................................................. 3.2, 3.6, 7.43
Direct appeals to................................................................................................5.2, 5.16
Disciplinary administrator................................................................................2.7, 11.3
Disciplinary proceedings.............................................................................11.15-11.18
History................................................................................................... Chapt 1, App A
Judicial administrator.................................................................................................. 2.5
Justices, see JUSTICES
Librarian........................................................................................................................ 2.6
Mandate, see MANDATE
Memorandum.......................................................................................................3.1, 4.2
Modification, motion for............................................................................. 7.44, 12.33
Motions, generally....................................................................................................... 3.4
Opinions, see also MANDATE..........................................................................3.3, 7.43
Oral argument.................................................................................. 3.1, 7.39-7.42, 10.3
Original actions, see ORIGINAL ACTIONS
Original jurisdiction, see also ORIGINAL ACTIONS........................................... 4.1
Petition for review........................................................................... 3.5, 5.29, 7.46-7.56
Pre-hearing................................................................................................................... 3.1
Rehearing, motion for............................................................................3.4, 7.44, 12.33
Reporter........................................................................................................................ 2.4
Summary calendar..................................................................................................... 7.38
Transfer motion by.................................................................................................... 5.26
TAX APPEALS
Generally..............................................................................................................6.7, 12.2
TIMING
Additional time, motion for........................................................................ 7.30, 12.23
Agency decisions, review of ...................................................................................... 6.8
Agreed statement....................................................................................................... 7.24
Docketing the appeal................................................................................................ 7.16
Filing.....................................................................................................................7.9, 12.8
Generally..............................................................................................................7.9, 12.8
Notice of appeal....................................................................................................7.2-7.3
Original actions............................................................................................................ 4.2
2013
Index—General
I-19
References are to Section Numbers
Petition for review.................................................................................... 3.5, 5.29, 7.47
Service . ..............................................................................................................7.9, 12.8
Transcripts.................................................................................................................. 7.22
TRANSCRIPTS
See also RECORD ON APPEAL
Filing............................................................................................................................ 7.22
Generally..................................................................................................................... 7.21
Request for..................................................................................................... 7.21, 12.19
Unavailability of ........................................................................................................ 7.23
TRANSFER OF CASES BETWEEN COURTS
Appeal of right.................................................................................................5.28, 7.45
Court of Appeals motion........................................................................................ 5.27
Generally..................................................................................................................... 5.24
Party motion................................................................................ 5.25, 5.28, 7.35, 12.22
Petition for review.................................................................................... 3.5, 5.29, 7.46
Supreme Court motion............................................................................................. 5.26
WITHDRAWAL
Of attorney.................................................................................................... 7.19, 12.18
WORKERS COMPENSATION CASES
Generally, see also AGENCY DECISIONS.........................................6.16, 12.3-12.4
2013
I-20
2013
Index—General
Index—Authorities
I-21
Index-Authorities
References are to Section Numbers
Bentele & Cary, Appellate Advocacy Principles and Practice................................................. 8.6
Berry, Effective Appellate Advocacy: Brief Writing and Oral Argument......................9.2, 9.11
Bratvold and Penny, The Importance of Error Preservation................................................ 8.4
Childress & Davis, Federal Standards of Review................................................................. 8.2
Garner, The Winning Brief.................................................................................................. 9.11
Levy, How to Handle an Appeal........................................................................................... 8.5
Rambo and Pflaum, Legal Writing by Design.................................................... 9.2, 9.7, 9.11
Richmond, Requisite Learning and Good Moral Character:
A History of the Kansas Bench and Bar...................................................................Chapt 1
Standards for Imposing Lawyer Sanctions............................................................................11.13
Wisotsky, Professional Judgment on Appeal: Bringing and Opposing Appeals........................ 8.6
Kan. Const. art. 3, § 1........................................................................................................ 5.1
Kan. Const. art. 3, § 2.................................................................................................2.1, 3.6
Kan. Const. art. 3, § 3.................................................................................................4.1, 5.1
Kan. Const. art. 3, § 6(f).................................................................................................... 3.6
Kan. Const. art. 3, § 15..................................................................................................11.23
Kan. Const. art. 6.............................................................................................................. 5.16
Kan. Const. Bill of Rights................................................................................................. 4.8
2013
I-22
2013
Index—Authorities
Index—Cases
I-23
References are to Section Numbers
Index-Cases
References are to Section Numbers
143rd Street Investors v. Board of Johnson County Comm’rs .................................................. 7.8
Abasolo v. State...................................................................................................................... 5.4
Albright v. State of Kansas..................................................................................................... 7.7
Alliance Mortgage Co. v. Pastine........................................................................................... 8.24
AMCO Ins. Co. v. Beck....................................................................................................... 5.18
American Trust Administrators, Inc. v. Sebelius.................................................................... 5.18
Anderson v. Beech Aircraft Corp........................................................................................... 5.20
Anderson v. Scheffler.........................................................................................................7.2, 7.7
Angle v. Kansas Dept. of Revenue........................................................................................ 6.13
Arnold v. Hewitt.................................................................................................................. 5.18
Associated Wholesale Growers, Inc. v. Americold Corporation............................................... 8.13
Bain v. Artzer...................................................................................................................... 5.18
Barnes v. Board of Cowley County Comm’rs......................................................................... 6.15
Bartlett Grain Co. v. Kansas Corporation Comm’n................................................................. 6.2
Bates & Son Construction Co. v. Berry................................................................................ 5.18
Beal v. Rent-A-Center of America, Inc................................................................................... 7.2
Board of Miami County Comm’rs v. Kanza Rail-Trails Conservancy, Inc............................... 4.7
Board of Sedgwick County Comm’rs v. City of Park City..............................................5.18, 7.2
Board of Sumner County Comm’rs v. Bremby......................................................................... 6.4
Bohanon v. Werholtz............................................................................................................... 4.7
Boldridge v. State . ................................................................................................................ 8.17
Brown v. Fitzpatrick............................................................................................................ 5.18
Brown v. U.S.D. No. 333.................................................................................................... 6.15
Buchanan v. Kansas Dept. of Revenue................................................................................. 6.10
Butler County R.W.D. No. 8 v. Yates........................................................................ 5.18, 8.25
Casco v. Armour Swift-Eckrich............................................................................................. 7.43
Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs...................................... 8.15
Chapman v. California.......................................................................................................... 8.21
Chavez v. Markham............................................................................................................ 5.18
Chowning v. Cannon Valley Woodwork, Inc......................................................................... 6.11
City of Halstead v. Mayfield................................................................................................ 5.33
City of Lenexa v. Higgins.................................................................................................... 5.33
City of Liberal v. Witherspoon............................................................................................... 5.6
City of Newton v. Kirkley.................................................................................................... 5.33
2013
I-24
Index—Cases
References are to Section Numbers
City of Ottawa v. McMechan.......................................................................................... 7.2, 7.7
City of Overland Park v. Cunningham................................................................................... 5.9
City of Overland Park v. Travis............................................................................................ 5.33
City of Salina v. Amador..................................................................................................... 5.33
City of Salina v. Star B., Inc................................................................................................ 5.21
City of Wichita v. Bannon...................................................................................................... 5.7
City of Wichita v. Brown........................................................................................................ 7.7
City of Wichita v. Maddox................................................................................................... 5.33
City of Wichita v. Patterson.................................................................................................. 5.33
City of Wichita v. Smith......................................................................................................... 5.1
Claus v. Kansas Dept. of Revenue........................................................................................... 6.8
Coma Corporation v. Kansas Dept. of Labor......................................................................... 6.1
Comprehensive Health of Planned Parenthood v. Kline.....................................................4.1, 4.7
Cornett v. Roth........................................................................................................................ 7.2
Critchfield Physical Therapy v. The Taranto Group................................................................. 8.7
Crockett v. Medicalodges Inc.................................................................................................. 5.21
Curtiss-Wright Corp. v. General Electric Co......................................................................... 5.21
Cypress Media Inc. v. City of Overland Park........................................................................ 5.20
D.W. v. Bliss......................................................................................................................... 8.13
Danes v. St. David’s Episcopal Church................................................................................... 7.9
Daniels v. Chaffee.................................................................................................................... 7.2
David v. Hett........................................................................................................................ 8.22
Doe v. Kansas Dept. of Human Resources............................................................................ 6.13
Donaldson v. State Highway Commission.............................................................................. 5.18
Donnini v. Ouano................................................................................................................. 5.18
Duarte v. DeBruce Grain, Inc............................................................................................... 5.20
Evans v. Michigan................................................................................................................... 5.7
Expert Environmental Control, Inc. v. Walker....................................................................... 6.5
Explorer, Inc. v. Duranotic Door, Inc.................................................................................... 5.32
Federal Savings & Loan Ins. Corp. v. Treaster..................................................................... 5.18
Fisher v. Kansas Crime Victims Comp. Bd........................................................................... 7.58
Flores Rentals v. Flores.......................................................................................5.16, 5.18, 5.20
Frank v. Kansas Dept. of Agriculture................................................................................... 6.13
Fredricks v. Foltz................................................................................................................... 5.18
Frick v. City of Salina............................................................................................................ 6.2
Friedman v. Kansas State Bd. of Healing Arts................................................................6.2, 6.5
Friends of Bethany Place, Inc. v. City of Topeka..................................................................... 7.8
Giles v. Russell........................................................................................................................ 7.2
Gillespie v. Seymour............................................................................................................... 5.21
Gleason v. Samaritan Home.................................................................................................. 6.13
Graham v. Dokter Trucking Group........................................................................................ 6.1
2013
Index—Cases
I-25
References are to Section Numbers
Grindsted Products, Inc. v. Kansas City Power & Light Co.................................................... 6.6
Gulf Ins. Co. v. Bovee.......................................................................................................... 5.18
Gustin v. Payless Shoesource, Inc............................................................................................ 8.14
Haddock v. State..................................................................................................................... 9.2
Hall v. Dillon Companies, Inc............................................................................................... 8.11
Halley v. Barnabe.................................................................................................................. 8.19
Hallmark Cards, Inc. v. Kansas Dept. of Commerce & Housing......................................... 6.14
Harsch v. Miller.................................................................................................................... 5.18
Heckert Construction Co. v. City of Ft. Scott........................................................................ 6.15
Heiland v. Dunnick................................................................................................................ 6.8
Heiman v. Parrish................................................................................................................. 8.12
Henderson v. Hassur....................................................................................................5.18, 5.21
Hess v. St. Francis Regional Med .Center.........................................................................7.2, 7.7
Hill v. Farm Bur. Mut. Ins. Co............................................................................................. 7.26
Hockett v. The Trees Oil Co.................................................................................................. 8.27
Holton Transport, Inc. v. Kansas Corporation Comm’n......................................................... 5.18
Honeycutt v. City of Wichita..........................................................................................5.18, 7.2
Hundley v. Pfuetze................................................................................................................... 7.2
In re Adoption of B.G.J......................................................................................................... 8.7
In re Adoption of Baby Boy B.............................................................................................. 8.12
In re Anderson....................................................................................................................11.13
In re B.D.-Y.......................................................................................................................... 8.23
In re B.M.B.......................................................................................................................... 5.13
In re Berkowitz....................................................................................................................... 4.8
In re C.H.W......................................................................................................................... 5.18
In re Care & Treatment of Hay............................................................................................ 9.2
In re Care & Treatment of Miller.......................................................................................... 8.4
In re Care & Treatment of Saathoff..................................................................................... 5.18
In re Care & Treatment of Ward......................................................................................... 8.10
In re Carson........................................................................................................................11.16
In re D.I.G........................................................................................................................... 5.23
In re D.M.M.......................................................................................................................... 7.4
In re D.M.-T........................................................................................................................ 5.14
In re Estate of Broderick........................................................................................................ 8.4
In re Estate of Burns.............................................................................................................. 7.5
In re Equalization Appeal of Prieb Properties...................................................................... 6.11
In re Gershater....................................................................................................................11.17
In re Guardianship of Sokol................................................................................................. 5.22
In re J.D.B.............................................................................................................................. 5.1
In re J.D.J............................................................................................................................. 5.14
In re Jones............................................................................................................... 11.13, 11.17
2013
I-26
Index—Cases
References are to Section Numbers
In re L.B................................................................................................................................ 7.4
In re L.M............................................................................................................................. 5.15
In re Lober............................................................................................................................ 11.6
In re Marriage of Galvin........................................................................................................ 7.2
In re Marriage of Osborne.................................................................................................... 5.18
In re Marriage of Shannon..................................................................................................... 7.8
In re Marriage of Wilson........................................................................................................ 7.2
In re Mason............................................................................................................................ 5.4
In re Petition of City of Shawnee for Annexation of Land.................................................... 7.2
In re Price............................................................................................................................11.13
In re Rock...........................................................................................................................11.20
In re Rome..........................................................................................................................11.30
In re Russo..........................................................................................................................11.21
In re S.C........................................................................................................................5.18, 7.4
In re Sylvester........................................................................................................................ 7.29
In re T.A.............................................................................................................................. 5.18
In re T.D.W..................................................................................................................5.18, 7.4
In re T.S.W.......................................................................................................................... 5.18
In re Tarantino....................................................................................................................11.11
In re Tax Appeal of Fleet..................................................................................................... 5.18
In re Tax Appeal of LaFarge Midwest................................................................ 6.1, 6.13, 8.14
In re Tax Appeal of Newton Country Club Co...................................................................... 6.8
In re Tax Appeal of Professional Engineering Consultants................................................... 8.25
In re Tax Exemption Application of Reno Township............................................................. 6.5
In re Ware...........................................................................................................................11.13
In re Williamson................................................................................................................... 11.6
Investcorp, L.P. v. Simpson Inv. Co....................................................................................... 5.18
Jarvis v. Drake.......................................................................................................... 11.7, 11.14
Johnson v. American Cyanamid Co...................................................................................7.2, 7.8
Jones v. Continental Can Company......................................................................... 6.8, 7.9, 6.16
Jones v. Kansas State University............................................................................................. 6.13
Jones v. State.....................................................................................................................6.2, 6.8
Kansas Board of Education v. Marsh................................................................................... 5.34
Kansas Dept. of Revenue v. Powell........................................................................................ 8.14
Kansas Industrial Consumers Group, Inc. v. Kansas Corporation Comm’n............................ 6.14
Kansas Medical Mut. Ins. Co. v. Svaty...........................................................................4.7, 5.18
Kansas State Univ. v. Kansas Comm’n on Civil Rights......................................................... 6.13
Kansas Sunset Assocs. v. Kansas Dept. of Health & Environment...................................... 6.14
Kargus v. State...............................................................................................................5.4, 7.47
Kincade v. Cargill, Inc........................................................................................................... 8.11
Kingsley v. Kansas Dept. of Revenue...........................................................6.9, 6.11, 6.13, 8.13
2013
Index—Cases
I-27
References are to Section Numbers
Koplin v. Rosel Well Perforators, Inc...................................................................................... 5.36
Krogen v. Collins...................................................................................................................... 4.1
L.P.P. Mortgage, Ltd. v. Hayse.............................................................................. 5.18, 7.2, 7.6
Legislative Coordinating Council v. Stanley.............................................................................. 4.7
Lowe v. State........................................................................................................................... 5.7
Lyons v. Holder..................................................................................................................... 8.19
Manhattan Ice & Cold Storage v. City of Manhattan.................................................8.18, 8.28
Martinez v. Milburn Enterprises, Inc.................................................................................... 5.36
McCracken v. Kohl................................................................................................................ 5.18
McDonald v. Hannigan........................................................................................................... 7.2
McPherson v. State.................................................................................................................. 5.7
McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs........................................... 8.15
Midwest Asphalt Coating v. Chelsea Plaza Homes............................................................... 8.11
Midwest Crane & Rigging, Inc. v. Kansas Corporation Comm’n............................................ 6.2
Mildfelt v. State....................................................................................................................... 6.7
Mitchell v. Kansas Dept. of Revenue....................................................................................... 8.9
Mobil Oil Corp. v. McHenry.................................................................................................. 4.7
Mohawk Industries, Inc. v. Carpenter.................................................................................... 5.18
Muzingo v. Vaught............................................................................................................... 7.29
National Bank of Andover v. Kansas Bankers Surety Co..................................................... 8.29
NEA-Topeka v. U.S.D. No. 501.................................................................................3.6, 5.18
Neal v. Hy-Vee, Inc.............................................................................................................. 5.18
Newcastle Homes v. Thye....................................................................................................... 5.18
Nolan v. Auto Transporters.................................................................................................... 7.3
O’Brien v. Leegin Creative Leather Products, Inc................................................................... 8.22
Oertel v. Phillips.................................................................................................................... 5.18
Ortega v. IBP........................................................................................................................ 5.36
Osterhaus v. Toth.................................................................................................................. 8.13
Paletta v. City of Topeka...................................................................................................... 5.33
Patterson v. Missouri Valley Steel, Inc................................................................................... 5.21
Paulsen v. U.S.D No. 368...................................................................................................... 3.6
Peck v. University Residence Committee of Kansas State Univ.............................................. 6.13
Pierce v. Pierce......................................................................................................................... 3.6
Pieren-Abbott v. Kansas Department of Revenue.................................................................. 6.12
Pioneer Operations Co. v. Brandeberry................................................................................... 5.21
Plains Petroleum Co. v. First National Bank of Lamar.................................... 5.16, 5.18, 5.21
Prime Lending II v. Trolley’s Real Estate Holdings............................................................... 5.21
Ramcharan-Maharajh v. Gilliland.......................................................................................... 4.7
Rebel v. Kansas Dept. of Revenue........................................................................................... 6.5
Redd v. Kansas Truck Center................................................................................. 6.1, 8.9, 8.14
Reed v. Hess.......................................................................................................................... 5.18
2013
I-28
Index—Cases
References are to Section Numbers
Reimer v. Davis..................................................................................................................... 5.18
Resolution Trust Corp. v. Bopp................................................................................................ 7.2
Robinson v. City of Wichita Retirement Bd. of Trustees..............................................6.15, 8.15
Rowland v. Barb...................................................................................................................... 7.2
Safarik v. Bruce....................................................................................................................... 4.8
Sanders v. City of Kansas City.............................................................................................. 7.16
Schmidtlien Electric, Inc. v. Greathouse.................................................................................... 4.7
Schoenholz v. Hinzman........................................................................................................... 8.9
Schroeder v. Urban.................................................................................................................. 7.2
Skahan v. Powell................................................................................................................... 5.18
Smith v. Kansas Dept. of Revenue.......................................................................................... 8.9
Smith v. Martens................................................................................................................... 8.26
Smith v. Russell..................................................................................................................... 5.18
Smith v. Williams................................................................................................................. 5.19
Snider v. American Family Mut. Ins. Co............................................................................... 7.58
Snodgrass v. State Farm Mut. Auto. Ins. Co......................................................................... 5.18
Squires v. City of Salina......................................................................................................... 7.3
St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc................................................. 5.21
State ex rel. Board of Healing Arts v. Beyrle........................................... 5.16, 5.18, 5.20, 5.21
State ex rel. Morrison v. Sebelius......................................................................................4.6, 4.7
State ex rel. Rome v. Fountain................................................................................................. 5.7
State ex rel. Slusher v. City of Leavenworth............................................................................ 4.7
State ex rel. Stephan v. Kansas Dept. of Revenue.........................................................5.18, 5.20
State ex rel. Stephan v. Martin................................................................................................ 4.6
State ex rel. Stephan v. O’Keefe............................................................................................... 4.7
State, ex rel., v. United Royalty Co.......................................................................................... 4.6
State v. Adee........................................................................................................................... 5.9
State v. Anderson.................................................................................................................. 8.28
State v. Appleby.................................................................................................................... 8.18
State v. Asher...................................................................................................................5.1, 5.5
State v. Barnes....................................................................................................................... 5.12
State v. Beechum...................................................................................................................... 5.5
State v. Berg............................................................................................................................ 5.7
State v. Berreth.................................................................................................................5.6, 5.9
State v. Bliss...................................................................................................................5.6, 5.11
State v. Bohannon.................................................................................................................... 7.7
State v. Boyd...................................................................................................................5.3, 8.13
State v. Bridges...................................................................................................................... 8.21
State v. Cameron................................................................................................................... 5.11
State v. Carapezza................................................................................................................ 8.11
State v. Chastain..................................................................................................................... 5.9
2013
Index—Cases
I-29
References are to Section Numbers
State v. Cheever....................................................................................................................... 5.2
State v. Cisneros.................................................................................................................... 5.12
State v. Clark........................................................................................................................ 5.12
State v. Craig.......................................................................................................................... 5.9
State v. Dale.......................................................................................................................... 8.13
State v. Divine....................................................................................................................... 8.25
State v. Donahue............................................................................................................5.4, 5.11
State v. Downey....................................................................................................................... 5.5
State v. Duncan..................................................................................................................... 5.15
State v. Edgar......................................................................................................................... 5.5
State v. Edwards................................................................................................................... 8.20
State v. Ellmaker...........................................................................................................7.4, 8.13
State v. Ernesti........................................................................................................................ 6.2
State v. Favela....................................................................................................................... 5.12
State v. Finical........................................................................................................................ 5.7
State v. Flore..................................................................................................................5.4, 5.12
State v. Foster.......................................................................................................................... 9.2
State v. Freeman....................................................................................................... 5.6, 5.7, 7.7
State v. Frye.......................................................................................................................... 8.10
State v. G.W.A...................................................................................................................... 5.9
State v. Gill............................................................................................................................. 5.1
State v. Gillen.................................................................................................................5.5, 5.31
State v. Gilliland..................................................................................................................... 8.6
State v. Golston....................................................................................................................... 5.9
State v. Gomez........................................................................................................................ 8.4
State v. Graham................................................................................................... 5.12, 8.7, 8.10
State v. Gustin.................................................................................................................5.7, 5.9
State v. Guzman..............................................................................................................5.4, 5.7
State v. Hannebohn................................................................................................................. 5.4
State v. Hartpence........................................................................................................5.13, 5.31
State v. Hayes.......................................................................................................................... 5.2
State v. Hermes................................................................................................................5.4, 5.9
State v. Hernandez.................................................................................................................. 5.7
State v. Hodgden................................................................................................................... 5.12
State v. Huff.....................................................................................................................5.7, 5.9
State v. Hunziker.................................................................................................................... 5.5
State v. Hurla......................................................................................................................... 5.9
State v. J.D.H................................................................................................................9.2, 9.11
State v. Jaben........................................................................................................................... 5.9
State v. Johnson....................................................................................................................... 5.9
State v. King.......................................................................................................................... 8.21
2013
I-30
Index—Cases
References are to Section Numbers
State v. Klassen....................................................................................................................11.16
State v. Kleen......................................................................................................................... 5.31
State v. Kralik......................................................................................................................... 5.9
State v. Kunellis..................................................................................................................... 5.13
State v. Lawson....................................................................................................................... 5.4
State v. Legero...............................................................................................5.1, 5.5, 5.31, 5.33
State v. Leshay........................................................................................................................ 8.4
State v. Lewis.......................................................................................................................... 5.1
State v. Marshall................................................................................................................... 8.21
State v. Martin...................................................................................................................... 5.12
State v. May.......................................................................................................................... 8.27
State v. McCallum................................................................................................................. 5.12
State v. McCarley................................................................................................... 5.1, 5.6, 8.25
State v. McCaslin.................................................................................................................. 8.28
State v. McCullough.......................................................................................................8.29, 9.5
State v. McDaniel.................................................................................................................... 5.5
State v. McDaniels................................................................................................................ 5.11
State v. Mejia.......................................................................................................................... 4.8
State v. Michel......................................................................................................................... 7.7
State v. Mitchell....................................................................................................................... 4.2
State v. Moffit.......................................................................................................................... 5.9
State v. Mooney..............................................................................................................5.11, 7.7
State v. Moses.......................................................................................................................... 5.4
State v. Mountjoy..............................................................................................................5.4, 5.9
State v. Murry......................................................................................................................... 5.9
State v. Nelson........................................................................................................................ 5.7
State v. Newman............................................................................................................5.11, 7.7
State v. Nuessen.................................................................................................................... 5.11
State v. Ortiz...................................................................................................................5.4, 7.7
State v. Patton..................................................................................................................5.4, 7.7
State v. Phinney....................................................................................................................... 5.4
State v. Plummer............................................................................................................8.2, 8.18
State v. Pottoroff...................................................................................................................... 5.9
State v. Raiburn.................................................................................................................... 7.37
State v. Ransom..................................................................................................................... 5.13
State v. Remlinger.........................................................................................................5.31, 5.33
State v. Richardson................................................................................................................ 5.12
State v. Roberts...............................................................................................................5.7, 7.49
State v. Roderick..................................................................................................................... 5.9
State v. Ruff............................................................................................................................ 5.9
State v. Sales......................................................................................................................... 5.11
2013
Index—Cases
I-31
References are to Section Numbers
State v. Sampsel..................................................................................................................... 5.12
State v. Sanchez-Loredo......................................................................................................... 7.49
State v. Savaiano................................................................................................................... 11.6
State v. Scaife.......................................................................................................................... 5.4
State v. Schad........................................................................................................................ 5.12
State v. Scott............................................................................................................................ 5.5
State v. Sharp.......................................................................................................................... 8.9
State v. Shirley....................................................................................................................... 8.20
State v. Sims............................................................................................................................ 5.8
State v. Sisk............................................................................................................................ 5.6
State v. Skolaut....................................................................................................................... 5.9
State v. Snodgrass.................................................................................................................... 5.6
State v. Solomon...................................................................................................................... 5.5
State v. Soto............................................................................................................................ 5.4
State v. Stallings...................................................................................................................... 5.9
State v. Thomas..............................................................................................................5.3, 5.17
State v. Tiffany...................................................................................................................... 5.12
State v. Toler........................................................................................................................... 5.9
State v. Torres....................................................................................................................... 8.26
State v. Tremble....................................................................................................................... 5.9
State v. Unruh................................................................................................................5.8, 5.11
State v. Urban....................................................................................................................... 7.43
State v. Vandervort................................................................................................................ 5.12
State v. Vanwey....................................................................................................................... 5.6
State v. Verge...................................................................................................................5.1, 5.2
State v. Walker..................................................................................................... 8.9, 8.11, 8.28
State v. Ward...................................................................................................................8.6, 8.7
State v. Ware......................................................................................................................... 5.12
State v. Williams.................................................................................................... 8.2, 8.4, 8.18
State v. Wilson......................................................................................................... 5.7, 5.9, 7.7
State v. Woodling..............................................................................................................5.6, 5.9
State v. Wright........................................................................................................................ 5.7
State v. Zeigler.....................................................................................................................11.16
State v. Zimmerman................................................................................................................ 5.4
State v. Zimmerman & Schmidt............................................................................................. 5.7
Stauth v. Brown..............................................................................................................5.18, 7.6
Superior Boiler Works, Inc. v. Kimball.........................................................................5.36, 8.28
Thompson v. State........................................................................................................8.16, 8.17
Transport Clearing House, Inc. v. Rostock............................................................................. 5.18
U.S.D. No. 503 v. McKinney............................................................................................... 5.19
United Steelworkers of America v. Kansas Comm’n on Civil Rights....................................... 6.5
2013
I-32
Index—Cases
References are to Section Numbers
Unruh v. Purina Mills.......................................................................................8.10, 8.13, 8.18
Vallejo v. BNSF Railway Company..................................................................................... 5.18
Valley State Bank v. Geiger................................................................................. 5.18, 5.19, 7.6
Venters v. Sellers............................................................................................................8.9, 8.13
Vorhees v. Baltazar............................................................................................................... 7.37
Ward v. Ward....................................................................................................................... 8.12
Williams v. General Elec. Co................................................................................................ 5.18
Wilson v. Sebelius.............................................................................................................4.6, 4.7
Winters v. GNB Battery Technologies................................................................................... 5.18
Woods v. Unified Gov’t of Wyandotte County/KCK............................................................. 5.18
Zarda v. State......................................................................................................................... 6.5
2013
Index—Rules
I-33
References are to Section Numbers
Index-Rules
References are to Section Numbers
Internal Operating Procedure II(B)(1)................ 4.4
Internal Operating Procedure V........................... 3.4
Internal Operating Rule C.1..............................11.11
Internal Operating Rule D.1..............................11.11
Internal Operating Rule E.3..............................11.13
Kansas Court Personnel Rules 9.4(e)...............11.26
Kansas Court Rules Annotated.............. 11.4, 11.24
Kansas Rule of Professional Conduct...............11.1
Kansas Rule of Professional Conduct 1.5......12.34
Kansas Rule of Professional Conduct 1.6........11.6
Kansas Rule of Professional Conduct 1.7(a).. 12.18
Kansas Rule of Professional Conduct 8.1........11.6
Kansas Rule of Professional Conduct 8.3........11.6
Kansas Rule of Professional Conduct 8.3(a)....11.6
Kansas Rule of Professional Conduct 8.3(b)...11.6
Lawyers’ Fund for Client Protection Rule 12.E......
11.22
Model Rules of Professional Conduct 1.5 Fees......
7.58
Rule 1.01(e).....................................................2.3, 7.29
Rule 1.05...................................................................7.9
Rule 1.05(a).............................................................. 7.9
Rule 1.05(b).............................................................. 7.9
Rule 1.05(c).............................................................. 7.9
Rule 1.05(d).............................................................. 7.9
Rule 1.08....................................................... 7.29, 12.8
Rule 1.09..................................................... 7.19, 12.18
Rule 1.09(a)............................................................7.18
Rule 1.09(b)............................................................7.19
Rule 1.09(c)............................................................7.19
Rule 1.09(d)............................................................7.19
Rule 1.09(e)............................................................7.19
Rule 1.10................................7.18, 7.42, 12.15, 12.16
Rule 1.10(a)............................................................7.18
Rule 1.10(b)............................................................7.18
Rule 1.10(d)(1).......................................................7.18
Rule 2.01...................................................................5.3
Rule 2.02...................................................................5.3
Rule 2.03..........................................................5.18, 7.2
Rule 2.03(a).............................................................. 7.2
Rule 2.03(b).............................................................. 7.2
Rule 2.04.........................6.16, 7.16, 7.18, 7.21, 12.14
Rule 2.04(a)(1)........................................................7.16
Rule 2.04(a)(2).................................................7.8, 7.16
Rule 2.04(b)............................................................7.16
Rule 2.04(c)............................................................7.16
Rule 2.04(d)............................................................7.16
Rule 2.04(e)............................................................7.16
Rule 2.041.......................................................7.8, 7.16
Rule 2.041(e)..........................................................7.16
Rule 2.042.............................................................12.12
Rule 2.05(a)............................................................7.28
Rule 2.06..................................................... 7.28, 12.21
Rule 2.06(a)............................................................7.34
Rule 2.06(e)............................................................7.28
Rule 3.01(a).................................................. 7.20, 7.26
Rule 3.01(b)............................................................7.20
Rule 3.01(b)(2).......................................................7.26
Rule 3.02...........................7.20, 7.25, 7.26, 9.2, 12.20
Rule 3.02(d)............................................................7.26
Rule 3.02(d)(2).......................................................7.26
Rule 3.02(d)(3)........................................... 7.26, 12.20
Rule 3.03.................... 6.16, 7.58, 12.10, 12.12, 12.19
Rule 3.03(a)............................................................7.21
Rule 3.03(c)............................................................7.21
Rule 3.03(d)................................................ 7.21, 12.19
Rule 3.03(e)................................................ 7.22, 12.19
Rule 3.03(f).............................................................7.21
Rule 3.04...................................................................9.1
Rule 3.04(a)............................................................7.23
Rule 3.04(b)............................................................7.23
Rule 3.05..........................................................7.24, 9.1
Rule 3.07.................................................................7.27
Rule 3.08.................................................................7.27
Rule 4.01............................................5.20, 12.1, 12.30
Rule 4.01A.................................................... 5.20, 12.1
Rule 4.02.................................................................5.11
Rule 5.01...............5.25, 7.16, 7.19, 7.28, 7.58, 12.34
Rule 5.01(a)............................................................7.29
Rule 5.01(b)................................................ 7.29, 12.23
Rule 5.01(c)................................................ 7.29, 12.23
Rule 5.01(d)................................................ 7.29, 12.23
Rule 5.01(e)............................................................7.29
Rule 5.02.................................. 7.22, 9.1, 12.23, 12.24
Rule 5.02(a)............................................................7.30
Rule 5.02(c)............................................................7.30
2013
I-34
Index—Rules
References are to Section Numbers
Rule 5.03.................................................................3.10
Rule 5.03(a)............................................................7.29
Rule 5.04...............................................................12.29
Rule 5.04(a)............................................................7.36
Rule 5.04(b)............................................................7.36
Rule 5.05.................................................................5.29
Rule 5.05(a).................................................. 7.29, 7.37
Rule 5.05(c)............................................................7.37
Rule 5.051...............................................................7.16
Rule 5.06....................................................... 7.15, 12.9
Rule 6.01...................................................................9.1
Rule 6.01(a)(5).......................................................... 9.2
Rule 6.01(b)............................................................7.22
Rule 6.01(b)(1)(A)................................................... 9.1
Rule 6.01(b)(1)(B).................................................... 9.1
Rule 6.01(b)(1)(C).................................................... 9.1
Rule 6.01(b)(2)......................................................... 9.1
Rule 6.01(b)(3)......................................................... 9.1
Rule 6.01(b)(4)......................................................... 9.1
Rule 6.01(b)(5)......................................................... 9.1
Rule 6.02............................................................9.2, 9.3
Rule 6.02(a).................................................. 7.24, 7.25
Rule 6.02(a)(1).......................................................... 9.2
Rule 6.02(a)(2).......................................................... 9.2
Rule 6.02(a)(3).......................................................... 9.2
Rule 6.02(a)(4).......................................................... 9.2
Rule 6.02(a)(5)........................................................10.2
Rule 6.02(b).......................................................9.2, 9.3
Rule 6.02(e)...........................................8.3, 8.4, 11.16
Rule 6.03............................................................9.3, 9.4
Rule 6.03(a).................................................. 7.24, 7.25
Rule 6.03(a)(1).......................................................... 9.3
Rule 6.03(a)(2).......................................................... 9.3
Rule 6.06(a)............................................................7.33
Rule 6.03(a)(3).......................................................... 9.3
Rule 6.03(a)(4) ........................... 8.3, 9.3, 10.2, 11.16
Rule 6.03(a)(5).......................................................... 9.3
Rule 6.03(b).............................................................. 9.3
Rule 6.04...................................................................9.4
Rule 6.05............................................................9.1, 9.5
Rule 6.06....................................................... 9.6, 12.31
Rule 6.06(a).....................................................7.33, 9.6
Rule 6.06(b).....................................................7.33, 9.6
Rule 6.06(c).....................................................7.33. 9.6
Rule 6.06(d).....................................................7.33, 9.6
Rule 6.07................................................7.51, 7.52, 9.7
Rule 6.07(a)(1).......................................................... 9.7
Rule 6.07(a)(2).......................................................... 9.7
Rule 6.07(a)(3).......................................................... 9.7
Rule 6.07(a)(4).......................................................... 9.7
Rule 6.07(a)(5).......................................................... 9.7
2013
Rule 6.07(b)(1)......................................................... 9.7
Rule 6.07(b)(2)......................................................... 9.7
Rule 6.07(c).............................................................. 9.7
Rule 6.07(d).............................................................. 9.7
Rule 6.07(e).................................................. 9.7, 12.25
Rule 6.07(f)............................................................... 9.7
Rule 6.07(g).............................................................. 9.7
Rule 6.07(h).............................................................. 9.7
Rule 6.08...................................................................9.8
Rule 6.09............................................................9.7, 9.9
Rule 6.09(a).....................................................7.52, 9.9
Rule 6.09(b)............................................................10.2
Rule 6.09(b)(1)......................................................... 9.9
Rule 6.09(b)(1)(C).................................................... 9.9
Rule 6.09(b)(2)......................................................... 9.9
Rule 6.09(b)(3)......................................................... 9.9
Rule 6.10.................................................................9.10
Rule 7.01(b).............................................................. 3.1
Rule 7.01(c)...............................................12.10-12.13
Rule 7.01(c)(2).................................................3.1, 7.38
Rule 7.01(c)(4).............................................. 7.38, 10.4
Rule 7.01(d)............................... 7.38, 7.41, 7.42, 10.3
Rule 7.01(e)..........................3.1, 9.7, 7.28, 7.39, 10.3
Rule 7.01(e)(1)........................................................7.42
Rule 7.01(e)(2)........................................................7.39
Rule 7.01(e)(3)........................................................7.42
Rule 7.01(e)(4)........................................................7.42
Rule 7.01(e)(5)........................................................7.42
Rule 7.02(a)............................................................10.4
Rule 7.02(c)..................................... 10.4, 12.10-12.13
Rule 7.02(c)(2)......................................... 3.1, 3.7, 7.38
Rule 7.02(c)(4).................................................3.7, 7.38
Rule 7.02(d)(3)....................................3.7, 7.40, 12.32
Rule 7.02(e).................................................. 7.38, 7.41
Rule 7.02(f).............................................. 3.7, 7.28, 9.7
Rule 7.02(f)(1).............................................. 7.42, 10.4
Rule 7.02(f)(2).............................................. 7.39, 10.4
Rule 7.02(f)(3)........................................................7.42
Rule 7.02(f)(4).......................................3.7, 7.40, 7.42
Rule 7.02(f)(5).............................................. 7.42, 10.4
Rule 7.03........................................................ 3.3, 7.59
Rule 7.03(a)............................................................7.43
Rule 7.03(b)............................................................7.56
Rule 7.03(b)(1)(A).................................................7.60
Rule 7.04.................................................... .3, 3.8, 7.43
Rule 7.04(b)............................................................7.43
Rule 7.04(e)............................................................7.43
Rule 7.04(g).............................................................. 9.8
Rule 7.04(g)(2)(B)..................................................7.43
Rule 7.04(g)(2)(C)..................................................7.43
Rule 7.041..................................................... 7.29, 7.43
Index—Rules
I-35
References are to Section Numbers
Rule 7.041(a)..........................................................7.43
Rule 7.041(b)..........................................................7.43
Rule 7.042(b)..........................................................7.43
Rule 7.05...........................7.9, 7.44, 7.47, 7.61, 12.33
Rule 7.05(a)............................................................7.44
Rule 7.05(b)............................................................7.44
Rule 7.05(c)............................................................7.44
Rule 7.06................................... 7.9, 7.44, 7.55, 12.33
Rule 7.06(a)............................................................7.44
Rule 7.06(b)............................................................7.44
Rule 7.06(c)............................................................7.44
Rule 7.07.................................................................7.58
Rule 7.07(a)............................................................7.16
Rule 7.07(a)(1)........................................................7.57
Rule 7.07(a)(2)........................................................7.57
Rule 7.07(a)(3)........................................................7.57
Rule 7.07(a)(4)........................................................7.57
Rule 7.07(a)(5)........................................................7.57
Rule 7.07(b)................................................ 7.58, 12.34
Rule 7.07(b)(1)........................................... 7.58, 12.34
Rule 7.07(b)(2).......................................................7.58
Rule 7.07(c)................................................ 7.58, 12.34
Rule 7.07(d).......................................7.21, 7.58, 12.34
Rule 8.02............................................5.25, 7.35, 12.22
Rule 8.02(b)(3)(A)...............................................12.22
Rule 8.02(b)(3)(D)...............................................12.22
Rule 8.03................... 3.5, 5.29, 7.17, 7.45, 7.46, 7.61
Rule 8.03(a).................................................. 5.29, 7.45
Rule 8.03(a)(1).......................................5.29, 7.9, 7.47
Rule 8.03(a)(2).............................................. 5.29, 7.44
Rule 8.03(a)(3)........................................................7.51
Rule 8.03(a)(4).................................................7.48, 9.7
Rule 8.03(a)(4)(C)..................................................7.49
Rule 8.03(a)(4)(F)..................................................7.48
Rule 8.03(b)............................................................7.50
Rule 8.03(b)(2)............................................. 7.49, 7.51
Rule 8.03(c)............................................................7.50
Rule 8.03(c)(2)........................................................7.51
Rule 8.03(c)(3)........................................................7.49
Rule 8.03(c)(4)........................................................7.50
Rule 8.03(e)(1)........................................................7.45
Rule 8.03(e)(2).............................................. 5.29, 7.46
Rule 8.03(e)(3)........................................................7.48
Rule 8.03(f)............................................3.5, 7.56, 7.61
Rule 8.03(g)............................................................7.46
Rule 8.03(g)(1)............................................. 7.49, 7.52
Rule 8.03(g)(2).......................................................7.52
Rule 8.03(g)(3).......................................................7.52
Rule 8.03(g)(4).......................................................7.53
Rule 8.03(h).....................................................3.5, 7.55
Rule 8.03(h)(1)......................................................... 3.5
Rule 8.03(h)(4).......................................................7.52
Rule 8.03(i)..........................................7.54, 7.56, 7.61
Rule 9.01.................................................... 3.4, 4.1, 4.2
Rule 9.01(a).......................................................4.2, 4.3
Rule 9.01(b).............................................................. 4.1
Rule 9.01(c)(1).......................................................... 4.4
Rule 9.01(c)(2).......................................................... 4.4
Rule 9.01(c)(3).......................................................... 4.4
Rule 9.01(d).............................................................. 4.5
Rule 9.01(e).............................................................. 4.4
Rule 9.03....................................................... 12.2, 12.4
Rule 9.04....................................................... 6.16, 12.3
Rule 10.01..................................................... 7.16, 7.17
Rule 10.02...............................................................5.02
Rule 134....................................................................7.2
Rule 173..................................................................7.17
Rule 201..................................................................11.1
Rule 202................................................................11.11
Rule 203(a)...........................................................11.11
Rule 203(a)(3).......................................................11.18
Rule 203(b).............................................................11.8
Rule 203(c)(1).........................................................11.6
Rule 203(c)(4).........................................................11.8
Rule 203(d).............................................................11.9
Rule 203(d)(1)(ii)...................................................11.9
Rule 203(d)(2)(vi)..................................................11.9
Rule 203(d)(2)(vii).................................................11.9
Rule 204(c).............................................................11.4
Rule 204(g).............................................................11.4
Rule 205..................................................................11.3
Rule 206..................................................................11.6
Rule 206(k).............................................................11.6
Rule 207..................................................................11.6
Rule 210..................................................................11.6
Rule 210(c).............................................................11.7
Rule 210(d)...........................................................11.10
Rule 211................................................................11.10
Rule 211(a)...........................................................11.11
Rule 211(b)...........................................................11.11
Rules 211(d).........................................................11.11
Rule 211(e)...........................................................11.11
Rule 211(f)............................................................11.11
Rule 211(g)...........................................................11.12
Rule 211(g)(1)......................................................11.12
Rule 211(g)(3)......................................................11.12
Rule 211(g)(9)......................................................11.12
Rule 211(g)(12)....................................................11.12
Rule 212(b)...........................................................11.15
Rule 212(e)(3).......................................................11.15
Rule 212(f)............................................................11.17
Rule 212 (g)..........................................................11.18
2013
I-36
Index—Rules
References are to Section Numbers
Rule 215................................................................11.11
Rule 217................................................................12.38
Rule 217(a)...........................................................11.20
Rule 217(b)...........................................................11.20
Rule 217(c)...........................................................11.20
Rule 217(b)(1)(C).................................................11.18
Rule 218.................................................... 11.21, 12.38
Rule 218(a)...........................................................11.18
Rule 219(a)...........................................................11.21
Rule 219(d)(1)(A)................................................11.21
Rule 219(d)(1)(B).................................................11.21
Rule 219(d)(4)(K)................................................11.21
Rule 219(f)............................................................11.21
Rule 220................................................................11.14
Rule 220(a)...........................................................11.14
Rule 220(c)...........................................................11.14
Rule 221(a)...........................................................11.14
Rule 222..................................................................11.7
Rule 223................................................................11.14
Rule 224...................................................... 11.4, 11.19
Rule 224(b)...........................................................11.11
Rule 224(c)...........................................................11.18
Rule 224(e)............................................... 11.18, 11.20
2013
Rule 226..................................................................11.1
Rule 227................................................................11.22
Rule 354...................................................... 7.21, 12.19
Rule 365................................................................12.19
Rule 602................................................................11.24
Rule 602(b)...........................................................11.23
Rule 602(e)...........................................................11.23
Rule 603................................................................11.25
Rule 607................................................................11.29
Rule 607(a)...........................................................11.29
Rule 607(c)...........................................................11.29
Rule 607(d)(3)......................................................11.29
Rule 609........................................ 11.26, 11.27, 11.30
Rule 610................................................................11.28
Rule 611................................................................11.28
Rule 611(a)...........................................................11.29
Rule 611(b)...........................................................11.30
Rule 613................................................................11.30
Rule 620................................................................11.30
Rule 622................................................................11.30
Rule 623................................................................11.30
Rule 627................................................................11.24
U.S. Supreme Court Rule 23(3)...........................7.62
Index—Kansas Statutes
I-37
References are to Section Numbers
Index-Kansas Statutes
References are to Section Numbers
K.S.A. 3-709...........................................................5.16
K.S.A. 5-418...........................................................5.19
K.S.A. 7-103...........................................................11.2
K.S.A. 8-254...........................................................6.13
K.S.A. 12-4601(a)..................................................5.33
K.S.A. 12-4601(b)..................................................5.33
K.S.A. 12-4602.......................................................5.33
K.S.A. 19-717........................................................... 5.7
K.S.A. 20-318........................................................... 2.1
K.S.A. 20-2616......................................................... 3.6
K.S.A. 20-3001......................................................... 5.1
K.S.A. 20-3002(c).................................................... 3.6
K.S.A. 20-3016.......................................................5.24
K.S.A. 20-3016(a)...............................5.25, 5.27, 7.35
K.S.A. 20-3016(b)..................................................5.27
K.S.A. 20-3017..................................5.24, 5.25, 12.22
K.S.A. 20-3018.......................................................5.24
K.S.A. 20-3018(a)..................................................5.26
K.S.A. 20-3018(b)............5.29, 7.44, 7.46, 7.47, 7.49
K.S.A. 20-3018(c).............................5.14, 5.26, 12.22
K.S.A. 21-4719(b)(1).............................................5.12
K.S.A. 21-4721.......................................................5.12
K.S.A. 21-4721(a)...........................................5.12, 7.7
K.S.A. 21-4721(b)..................................................7.15
K.S.A. 21-4721(c)..................................................5.12
K.S.A. 21-4721(e)..................................................5.12
K.S.A. 21-4721(e)(1).............................................5.12
K.S.A. 21-4721(e)(2).............................................5.12
K.S.A. 21-4721(e)(3).............................................5.12
K.S.A. 21-5301......................................................... 5.3
K.S.A. 21-5302......................................................... 5.3
K.S.A. 21-5303......................................................... 5.3
K.S.A. 21-5426(c)(2)(B).......................................... 5.3
K.S.A. 21-5503(b)(2)(B)......................................... 5.3
K.S.A. 21-5504(c)(2)(B)(ii)..................................... 5.3
K.S.A. 21-5506(c)(2)(C)(ii)..................................... 5.3
K.S.A. 21-5510(b)(2)(B)......................................... 5.3
K.S.A. 21-6420(b)(4)............................................... 5.3
K.S.A. 21-6604b(f)................................................5.12
K.S.A. 21-6619(a).................................................... 5.2
K.S.A. 21-6629(c).................................................... 5.2
K.S.A. 21-6803(f)..................................................5.12
K.S.A. 21-6803(g)..................................................5.12
K.S.A. 21-6803(i)...................................................5.12
K.S.A. 21-6818(b)(1).............................................5.12
K.S.A. 21-6820.......................................................5.12
K.S.A. 21-6820(a)...........................................5.12, 7.7
K.S.A. 21-6820(b)..................................................7.15
K.S.A. 21-6820(c)..................................................5.12
K.S.A. 21-6820(d)..................................................5.12
K.S.A. 21-6820(d)(1).............................................5.12
K.S.A. 21-6820(d)(2).............................................5.12
K.S.A. 21-6820(e)..................................................5.12
K.S.A. 21-6820(e)(1).............................................5.12
K.S.A. 21-6820(e)(2).............................................5.12
K.S.A. 21-6820(e)(3).............................................5.12
K.S.A. 21-6820(i)...................................................5.12
K.S.A. 22-2710......................................................... 5.4
K.S.A. 22-2804(1)..................................................7.15
K.S.A. 22-2804(2)..................................................7.15
K.S.A. 22-3210(d).................................................... 5.5
K.S.A. 22-3402.......................................................5.11
K.S.A. 22-3414(3)..................................................8.18
K.S.A. 22-3430......................................................... 5.4
K.S.A. 22-3430(c).................................................... 5.4
K.S.A. 22-3502......................................................... 5.8
K.S.A. 22-3503......................................................... 5.8
K.S.A. 22-3504..................................................5.3, 5.6
K.S.A. 22-3601(a)............................5.2, 5.3, 5.11, 7.7
K.S.A. 22-3601(b)(1)............................................... 5.2
K.S.A. 22-3601(b)(2)............................................... 5.2
K.S.A. 22-3601(b)(3)............................................... 5.2
K.S.A. 22-3601(b)(4)........................................5.2, 5.3
K.S.A. 22-3601(b)(4)(A)......................................... 5.3
K.S.A. 22-3601(b)(4)(G)......................................... 5.3
K.S.A. 22-3602(a)..................................... 5.3, 5.4, 5.5
K.S.A. 22-3602(b)................................... 5.6, 5.14, 7.7
K.S.A. 22-3602(b)(1)............................................... 5.7
K.S.A. 22-3602(b)(2)............................................... 5.8
K.S.A. 22-3602(b)(3)............................................... 5.9
K.S.A. 22-3602(b)(4).............................................5.10
K.S.A. 22-3602(d)................5.7, 5.24, 5.29, 5.31, 7.7
K.S.A. 22-3602(e)........................................ 5.28, 7.45
K.S.A. 22-3602(f)..................................................5.12
K.S.A. 22-3603...............................5.7, 5.11, 5.31, 7.7
K.S.A. 22-3604(1)..................................................5.11
2013
I-38
Index—Kansas Statutes
References are to Section Numbers
K.S.A. 22-3604(2)..................................................5.11
K.S.A. 22-3604(3)..................................................5.11
K.S.A. 22-3606..................................................5.6, 7.7
K.S.A. 22-3608......................................................... 5.4
K.S.A. 22-3608(c).................................................... 7.7
K.S.A. 22-3609.......................................................5.33
K.S.A. 22-3609(1)..................................................5.33
K.S.A. 22-3609(2)...........................................5.33, 7.7
K.S.A. 22-3609a...................................... 5.5, 5.31, 7.7
K.S.A. 22-3609a(1)................................................5.31
K.S.A. 22-3609a(2)................................................5.31
K.S.A. 24-702(f).....................................................5.16
K.S.A. 25-1450.......................................................5.16
K.S.A. 26-504.........................................................5.16
K.S.A. 38-2202(m).........................................5.23, 7.4
K.S.A. 38-2202(v)...........................................5.23, 7.4
K.S.A. 38-2241.......................................................5.23
K.S.A. 38-2250.......................................................8.23
K.S.A. 38-2273(a)...........................................5.23, 7.4
K.S.A. 38-2273(b)...........................................5.32, 7.4
K.S.A. 38-2273(c).................................................... 7.4
K.S.A. 38-2274(a)..................................................7.13
K.S.A. 38-2274(b)..................................................7.13
K.S.A. 38-2301.......................................................5.14
K.S.A. 38-2380.......................................................5.13
K.S.A. 38-2380(a)(1)......................................5.13, 7.4
K.S.A. 38-2380(b)...........................................5.13, 7.4
K.S.A. 38-2380(b)(2)(A).......................................5.15
K.S.A. 38-2380(b)(2)(B).......................................5.15
K.S.A. 38-2380(b)(3).............................................5.13
K.S.A. 38-2380(b)(3)(A).......................................5.15
K.S.A. 38-2380(b)(3)(B).......................................5.15
K.S.A. 38-2380(b)(4)(A)............................. 5.13, 5.15
K.S.A. 38-2380(b)(4)(B)............................. 5.13, 5.15
K.S.A. 38-2380(b)(4)(C).......................................5.13
K.S.A. 38-2380(c)..................................................5.13
K.S.A. 38-2381......................................................... 7.4
K.S.A. 38-2381(a)(1).............................................5.14
K.S.A. 38-2381(a)(2).............................................5.14
K.S.A. 38-2381(a)(3).............................................5.14
K.S.A. 38-2381(a)(4).............................................5.14
K.S.A. 38-2381(a)(5).............................................5.14
K.S.A. 38-2381(b)..................................................5.14
K.S.A. 38-2382.......................................................5.31
K.S.A. 38-2382(a)..................................................5.13
K.S.A. 38-2382(c).................................................... 7.4
K.S.A. 38-2383(a)..................................................7.13
K.S.A. 38-2383(b)..................................................7.13
K.S.A. 44-556............................................... 6.16, 12.3
K.S.A. 44-556(a)...............5.17, 6.7, 6.13, 6.16, 12.3
K.S.A. 44-612.........................................................5.16
2013
K.S.A. 44-709(c)...................................................... 6.8
K.S.A. 44-1011(b)..................................................6.13
K.S.A. 55-1410.......................................................5.16
K.S.A. 59-6a201.....................................................5.22
K.S.A. 59-2111.......................................................5.22
K.S.A. 59-2401(a)..................................................5.22
K.S.A. 59-2401(b)...........................................5.22, 7.5
K.S.A. 59-2401(c)........................................ 5.22, 7.14
K.S.A. 59-2401(d).................................5.22, 7.5, 7.14
K.S.A. 59-2401a.....................................................5.22
K.S.A. 59-2401a(b).........................................5.22, 7.5
K.S.A. 59-2401a(c)...................................... 5.22, 7.14
K.S.A. 59-2401a(d)...............................5.22, 7.5, 7.14
K.S.A. 59-2401a(e)................................................5.22
K.S.A. 59-2402a.....................................................5.22
K.S.A. 59-2945.......................................................5.22
K.S.A. 59-29a01.....................................................5.22
K.S.A. 59-29b45....................................................5.22
K.S.A. 59-3050.......................................................5.22
K.S.A. 60-205........................................................... 7.1
K.S.A. 60-205(b)..................................................... 7.9
K.S.A. 60-206........................................................... 7.9
K.S.A. 60-206(a)...................................................... 9.1
K.S.A. 60-206(a)(6)................................................. 7.9
K.S.A. 60-206(b)...................................................... 9.1
K.S.A. 60-206(b)(1)(B).........................................7.30
K.S.A. 60-206(d)...................... 6.8, 7.2, 7.9, 7.29, 9.1
K.S.A. 60-223.........................................................5.20
K.S.A. 60-223(f).....................................................5.20
K.S.A. 60-225(a)..................................................12.28
K.S.A. 60-242(a)...................................................... 8.7
K.S.A. 60-250(b)...................................................... 7.2
K.S.A. 60-252(a)...................................................... 8.9
K.S.A. 60-252(b)...................................................... 7.2
K.S.A. 60-252(c)....................................................8.19
K.S.A. 60-254(b).......................................... 5.21, 7.16
K.S.A. 60-258........................................................... 7.2
K.S.A. 60-259(a).............................................5.18, 8.7
K.S.A. 60-259(b)...................................................... 7.2
K.S.A. 60-259(f)....................................................... 7.2
K.S.A. 60-260..................................................5.18, 7.2
K.S.A. 60-260(b)...................................................... 7.2
K.S.A 60-260(b)(6).................................................. 7.2
K.S.A. 60-261.........................................................8.21
K.S.A. 60-262(a)....................................................7.11
K.S.A. 60-262(c)....................................................7.11
K.S.A. 60-262(d)....................................................7.11
K.S.A. 60-262(e)`...................................................7.11
K.S.A. 60-401.......................................................11.11
K.S.A. 60-801........................................................... 4.7
K.S.A. 60-1201......................................................... 4.6
Index— Kansas Statutes
I-39
References are to Section Numbers
K.S.A. 60-1305................................................5.19, 7.2
K.S.A. 60-1501......................................................... 4.8
K.S.A. 60-1501(a).............................................4.1, 4.3
K.S.A. 60-1502......................................................... 4.2
K.S.A. 60-1507........................................ 5.5, 5.17, 7.7
K.S.A. 60-2001......................................................... 6.7
K.S.A. 60-2001(b).................................................... 4.3
K.S.A. 60-2005.......................................................7.16
K.S.A. 60-2101(a)..................................................5.17
K.S.A. 60-2101(b).. 5.16, 5.24, 5.28, 5.29, 7.45, 7.46
K.S.A. 60-2101(d)...............................5.34, 6.15, 8.15
K.S.A. 60-2102.......................................................5.19
K.S.A. 60-2102(a)..................................................5.19
K.S.A. 60-2102(a)(1).............................................5.19
K.S.A. 60-2102(a)(2)......................................4.4, 5.19
K.S.A. 60-2102(a)(3).............................................5.19
K.S.A. 60-2102(a)(4)..........................5.18, 5.19, 5.21
K.S.A. 60-2102(b)(1).............................................5.16
K.S.A. 60-2102(b)(2).............................................5.16
K.S.A. 60-2102(c).............................5.20, 12.1, 12.30
K.S.A. 60-2103...............................5.6, 5.22, 7.4, 7.14
K.S.A. 60-2103(a).............5.18, 7.2, 7.3, 7.4, 7.5, 7.7
K.S.A. 60-2103(b)..... 5.3, 5,18, 7.1, 7.2, 7.3, 7.7, 7.8
K.S.A. 60-2103(d)..................................................7.11
K.S.A. 60-2103(e)..................................................7.11
K.S.A. 60-2103(h)...........................................5.18, 7.8
K.S.A. 60-2103a(a)................................. 5.32, 7.3, 7.4
K.S.A. 60-2103a(b).................................................. 7.3
K.S.A. 60-2106................................................4.4, 7.43
K.S.A. 60-2106(c)..................................................7.59
K.S.A. 60-3201.......................................................5.36
K.S.A. 60-3202.......................................................5.36
K.S.A. 60-3203.......................................................5.36
K.S.A. 60-3204.......................................................5.36
K.S.A. 60-3206.......................................................5.36
K.S.A. 60-3207.......................................................5.36
K.S.A. 60-3208.......................................................5.36
K.S.A. 61-2709.......................................................5.35
K.S.A. 61-2709(a)...........................................5.35, 7.3
K.S.A. 61-2709(b)...........................................5.35, 7.3
K.S.A. 61-3901.......................................................7.12
K.S.A. 61-3901(c)..................................................5.18
K.S.A. 61-3902......................................................... 7.3
K.S.A. 61-3902(a)..................................................5.32
K.S.A. 61-3902(b)..................................................5.17
K.S.A. 61-3905.......................................................7.12
K.S.A. 65-3008a.....................................................5.17
K.S.A. 65-4211(b)..................................................5.16
K.S.A. 66-118a(b)...........................................5.17, 6.7
K.S.A. 66-118b........................................................ 6.8
K.S.A. 66-1,164......................................................5.16
K.S.A. 72-64b03....................................................5.16
K.S.A. 74-2426.......................................................12.2
K.S.A. 74-2426(c)(2)......................................5.17, 6.7
K.S.A. 74-8813(v)..................................................5.16
K.S.A. 74-8815(n)..................................................5.16
K.S.A. 77-528.........................................................6.10
K.S.A. 77-529(b)...................................................... 6.8
K.S.A. 77-531........................................................... 6.8
K.S.A. 77-532.........................................................6.12
K.S.A. 77-601..................................................6.2, 8.14
K.S.A. 77-602(b)...................................................... 6.2
K.S.A. 77-602(k)...................................................... 6.2
K.S.A. 77-603........................................................... 6.2
K.S.A. 77-603(c)....................................................6.15
K.S.A. 77-606........................................................... 6.2
K.S.A. 77-607....................................................6.2, 6.3
K.S.A. 77-607(b)(1)................................................. 6.2
K.S.A. 77-607(b)(2)................................................. 6.2
K.S.A. 77-608........................................................... 6.2
K.S.A. 77-609(b)...................................................... 6.7
K.S.A. 77-611........................................................... 6.4
K.S.A. 77-612........................................................... 6.5
K.S.A. 77-613(a)...................................................... 6.8
K.S.A. 77-613(b)...................................................... 6.8
K.S.A. 77-613(c)...................................................... 6.8
K.S.A. 77-613(d)...................................................... 6.8
K.S.A. 77-613(d)(1)................................................. 6.8
K.S.A. 77-613(d)(2)................................................. 6.8
K.S.A. 77-613(e)...................................................... 6.8
K.S.A. 77-614.............................. 6.9, 6.16, 12.2, 12.3
K.S.A. 77-614(a)...................................................... 6.7
K.S.A. 77-614(b)...................................................... 6.9
K.S.A. 77-614(c)...................................................... 6.9
K.S.A. 77-614(d)...............................................6.8, 6.9
K.S.A. 77-614(e)...................................................... 6.8
K.S.A. 77-616(a)....................................................6.10
K.S.A. 77-616(b)....................................................6.10
K.S.A. 77-616(c)....................................................6.10
K.S.A. 77-616(f).....................................................6.10
K.S.A. 77-617.........................................................6.11
K.S.A. 77-618.........................................................6.13
K.S.A. 77-619.........................................................6.13
K.S.A. 77-619(a)....................................................6.13
K.S.A. 77-619(b)....................................................6.13
K.S.A. 77-620(a)....................................................6.12
K.S.A. 77-620(b)....................................................6.12
K.S.A. 77-620(c)....................................................6.12
K.S.A. 77-620(d)....................................................6.12
K.S.A. 77-621.............................................. 6.1, 6.13
K.S.A. 77-621(a)....................................................6.13
K.S.A. 77-621(a)(1)...............................................8.14
2013
I-40
Index—Kansas Statutes
References are to Section Numbers
K.S.A. 77-621(a)(2)........................................6.1, 8.14
K.S.A. 77-621(b)....................................................6.13
K.S.A. 77-621(c).......................................... 6.13, 8.14
K.S.A. 77-621(c)(7)...............................................8.14
K.S.A. 77-621(d).......................................... 6.13, 8.14
K.S.A. 77-621(e)....................................................6.13
K.S.A. 77-622..................................................6.7, 6.14
2013
K.S.A. 77-622(a).............................................6.7, 6.14
K.S.A. 77-622(b).............................................6.7, 6.14
K.S.A. 77-622(c)....................................................6.14
K.S.A. 77-623.........................................................6.13
K.S.A. 77-631........................................................... 6.8
K.S.A. 79-3268(f).................................................... 8.7